Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Proposed Rules 77303

DEPARTMENT OF THE INTERIOR Room 110, Arlington, VA 22203; to add, remove, or reclassify a species telephone 703–358–1708; facsimile from the list of endangered or Fish and Wildlife Service 703–358–2276. If you use a threatened species has presented telecommunications device for the deaf substantial information indicating that 50 CFR Part 17 (TDD), call the Federal Information the requested action may be warranted. [FWS–R9–IA–2008–0118; 96000–1671– Relay Service (FIRS) at 800–877–8339. To the maximum extent practicable, the 0000–B6] SUPPLEMENTARY INFORMATION: finding shall be made within 90 days following receipt of the petition and RIN 1018–AW40 Public Comments published promptly in the Federal We intend that any final action Register. If the Service finds that the Endangered and Threatened Wildlife resulting from this proposal will be as petition has presented substantial and Plants; 12-Month Finding on a accurate and as effective as possible. information indicating that the Petition to List Five Penguin Species Therefore, we request comments or requested action may be warranted Under the Endangered Species Act, suggestions on this proposed rule. We (referred to as a positive finding), and Proposed Rule To List the Five particularly seek comments concerning: section 4(b)(3)(A) of the Act requires the Penguin Species (1) Biological, commercial, trade, or Service to commence a status review of AGENCY: Fish and Wildlife Service, other relevant data concerning any the species if one has not already been Interior. threats (or lack thereof) to this species initiated under the Service’s internal ACTION: Proposed rule and notice of 12- and regulations that may be addressing candidate assessment process. In month petition finding. those threats. addition, section 4(b)(3)(B) of the Act (2) Additional information concerning requires the Service to make a finding SUMMARY: We, the U.S. Fish and the range, distribution, and population within 12 months following receipt of Wildlife Service (Service), propose to size of this species, including the the petition on whether the requested list the yellow-eyed penguin locations of any additional populations action is warranted, not warranted, or (Megadyptes antipodes), white-flippered of this species. warranted but precluded by higher- penguin (Eudyptula minor albosignata), (3) Any information on the biological priority listing actions (this finding is Fiordland crested penguin (Eudyptes or ecological requirements of the referred to as the ‘‘12-month finding’’). pachyrhynchus), Humboldt penguin species. Section 4(b)(3)(C) of the Act requires (Spheniscus humboldti), and erect- (4) Current or planned activities in the that a finding of warranted but crested penguin (Eudyptes sclateri) as areas occupied by the species and precluded for petitioned species should threatened species under the possible impacts of these activities on be treated as having been resubmitted Endangered Species Act of 1973, as this species. on the date of the warranted but amended (Act). This proposal, if made You may submit your comments and precluded finding, and is, therefore, final, would extend the Act’s protection materials concerning this proposed rule subject to a new finding within 1 year to these species. This proposal also by one of the methods listed in the and subsequently thereafter until we constitutes our 12-month finding on the ADDRESSES section. We will not take action on a proposal to list or petition to list these five species. The consider comments sent by e-mail or fax withdraw our original finding. The Service seeks data and comments from or to an address not listed in the Service publishes an annual notice of the public on this proposed rule. ADDRESSES section. resubmitted petition findings (annual If you submit a comment via http:// DATES: We will accept comments and notice) for all foreign species for which www.regulations.gov, your entire listings were previously found to be information received or postmarked on comment—including any personal or before February 17, 2009. We must warranted but precluded. identifying information—will be posted In this notice, we announce a receive requests for public hearings, in on the Web site. If you submit a warranted 12-month finding and writing, at the address shown in the FOR hardcopy comment that includes proposed rule to list five penguin taxa FURTHER INFORMATION CONTACT section personal identifying information, you as threatened species under the Act, by February 2, 2009. may request at the top of your document yellow-eyed penguin, white-flippered ADDRESSES: You may submit comments that we withhold this information from penguin, Fiordland crested penguin, by one of the following methods: • public review. However, we cannot Humboldt penguin, and erect-crested Federal eRulemaking Portal: http:// guarantee that we will be able to do so. penguin. We will announce the 12- www.regulations.gov. Follow the We will post all hardcopy comments on month findings for the African penguin instructions for submitting comments. • http://www.regulations.gov. (Spheniscus demersus), emperor U.S. mail or hand-delivery: Public Comments and materials we receive, penguin (Aptenodytes forsteri), southern Comments Processing, Attn: [FWS–R9– as well as supporting documentation we rockhopper penguin (Eudyptes IA–2008–0118]; Division of Policy and used in preparing this proposed rule, chrysocome), northern rockhopper Directives Management; U.S. Fish and will be available for public inspection penguin (Eudyptes chrysolophus), and Wildlife Service; 4401 N. Fairfax Drive, on http://www.regulations.gov, or by macaroni penguin (Eudyptes Suite 222; Arlington, VA 22203. appointment, during normal business chrysolophus) in one or more separate We will not accept comments by e- hours, at the U.S. Fish and Wildlife Federal Register notice(s). mail or fax. We will post all comments Service, Division of Scientific Previous Federal Actions on http://www.regulations.gov. This Authority, 4401 N. Fairfax Drive, Room generally means that we will post any 110, Arlington, VA 22203; telephone On November 29, 2006, the Service personal information you provide us 703–358–1708. received a petition from the Center for (see the Public Comments section below Biological Diversity to list 12 penguin for more information). Background species under the Act: Emperor FOR FURTHER INFORMATION CONTACT: Section 4(b)(3)(A) of the Act (16 penguin, southern rockhopper penguin, Pamela Hall, Branch Chief, Division of U.S.C. 1533(b)(3)(A)) requires the northern rockhopper penguin, Scientific Authority, U.S. Fish and Service to make a finding known as a Fiordland crested penguin, snares Wildlife Service, 4401 N. Fairfax Drive, ‘‘90-day finding’’ on whether a petition crested penguin (Eudyptes robustus),

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erect-crested penguin, macaroni and commercial information on these We base our findings on a review of penguin, royal penguin (Eudyptes species. the best scientific and commercial schlegeli), white-flippered penguin, During the public comment period, information available, including all yellow-eyed penguin, African penguin, we received over 4,450 submissions information received during the public and Humboldt penguin. Among them, from the public, concerned comment period. Under section the ranges of the 12 penguin species governmental agencies, the scientific 4(b)(3)(B) of the Act, we are required to include Antarctica, Argentina, community, industry, and other make a finding as to whether listing Australian Territory Islands, Chile, interested parties. Approximately 4,324 each of the 10 species of penguins is French Territory Islands, Namibia, New e-mails and 31 letters received by U.S. warranted, not warranted, or warranted Zealand, Peru, South Africa, and United mail or facsimile were part of one letter- but precluded by higher priority listing Kingdom Territory Islands. The petition writing campaign and were actions. is clearly identified as such, and substantively identical. Each letter contains detailed information on the supported listing under the Act, Species Information and Factors natural history, biology, status, and included a statement identifying ‘‘the Affecting the Species distribution of each of the 12 species. It threat to penguins from global warming, Section 4 of the Act (16 U.S.C. 1533), also contains information on what the industrial fishing, oil spills and other and its implementing regulations at 50 petitioner reported as potential threats factors,’’ and listed the 10 species CFR part 424, set forth the procedures to the species from climate change and included in the Service’s 90-day for adding species to the Federal Lists changes to the marine environment, finding. A further group of 73 letters of Endangered and Threatened Wildlife commercial fishing activities, included the same information plus and Plants. A species may be contaminants and pollution, guano information concerning the impact of determined to be an endangered or extraction, habitat loss, hunting, ‘‘abnormally warm ocean temperatures threatened species due to one or more nonnative predator species, and other and diminished sea ice’’ on penguin of the five factors described in section factors. The petition also discusses food availability and stated that this has 4(a)(1) of the Act. The five factors are: existing regulatory mechanisms and the led to population declines in southern (A) The present or threatened perceived inadequacies to protect these rockhopper, Humboldt, African, and destruction, modification, or species. emperor penguins. These letters stated curtailment of its habitat or range; (B) In the Federal Register of July 11, that the emperor penguin colony at overutilization for commercial, 2007 (72 FR 37695), we published a 90- Point Geologie has declined more than recreational, scientific, or educational day finding in which we determined 50 percent due to global warming and purposes; (C) disease or predation; (D) that the petition presented substantial provided information on krill declines the inadequacy of existing regulatory scientific or commercial information to in large areas of the Southern Ocean. mechanisms; and (E) other natural or indicate that listing 10 species of They stated that continued warming manmade factors affecting its continued penguins as endangered or threatened over the coming decades will existence. may be warranted: Emperor penguin, dramatically affect Antarctica, the sub- Below is a species-by-species analysis southern rockhopper penguin, northern Antarctic islands, the Southern Ocean of these five factors. The species are rockhopper penguin, Fiordland crested and the penguins dependent on these considered in the following order: penguin, erect-crested penguin, ecosystems for survival. A small number Yellow-eyed penguin, white-flippered macaroni penguin, white-flippered of general letters and e-mails drew penguin, Fiordland crested penguin, penguin, yellow-eyed penguin, African particular attention to the conservation Humboldt penguin, and erect-crested penguin, and Humboldt penguin. status of the southern rockhopper penguin. Furthermore, we determined that the penguin in the Falkland Islands. petition did not provide substantial Twenty submissions provided Yellow-Eyed Penguin (Megadyptes scientific or commercial information detailed, substantive information on one antipodes) indicating that listing the snares crested or more of the 10 species. These Background penguin and the royal penguin as included information from the threatened or endangered species may governments, or government-affiliated The yellow-eyed penguin, also known be warranted. scientists, of Argentina, Australia, by its Maori name, hoiho, is the third Following the publication of our 90- Namibia, New Zealand, Peru, South largest of all penguin species, averaging day finding on this petition, we initiated Africa, and the United Kingdom, from around 24 pounds (lb) (11 kilograms a status review to determine if listing scientists, from 18 members of the U.S. (kg)) in weight. It is the only species in each of the 10 species is warranted, and Congress, and from one non- the monotypic genus Megadyptes. opened a 60-day public comment period governmental organization (the original Yellow-eyed penguins breed on the to allow all interested parties an petitioner). southeast coast of New Zealand’s South opportunity to provide information on On December 3, 2007, the Service Island, from Banks Peninsula to Bluff at the status of the 10 species of penguins. received a 60-day Notice of Intent to Sue the southern tip; in Fouveaux Strait, and The public comment period closed on from the Center for Biological Diversity on Stewart and adjacent islands just September 10, 2007. In addition, we (CBD). CBD filed a complaint against the 18.75 mi (30 km) from the southern tip attended the International Penguin Department of the Interior on February of the New Zealand mainland; and at Conference in Hobart, Tasmania, 27, 2008, for failure to make a 12-month the sub-Antarctic Auckland and Australia, a quadrennial meeting of finding on the petition. On September 8, Campbell Islands, 300 mi (480 km) and penguin scientists from September 3–7, 2008, the Service entered into a 380 mi (608 km), respectively, south of 2007 (during the open public comment Settlement Agreement with CBD, in the southern tip of the South Island. The period), to gather information and to which we agreed to submit to the distribution is thought to have moved ensure that experts were aware of the Federal Register 12-month findings for north since the 1950s (McKinlay 2001, status review and the open comment the 10 species of penguins, including p. 8). The species is confined to the seas period. We also consulted with other the five penguin taxa that are the subject of the New Zealand region and forages agencies and range countries in an effort of this proposed rule, on or before over the continental shelf (Taylor 2000, to gather the best available scientific December 19, 2008. p. 93).

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Unlike more strongly colonial Blair 2003, p. 110). While these Summary of Factors Affecting the breeding penguin species, yellow-eyed populations are essentially contiguous Yellow-Eyed Penguin penguins nest in relative seclusion, out with the mainland range, this is the first Factor A. The Present or Threatened of sight of humans and one another population estimate for this area based Destruction, Modification, or (Wright, 1998, pp. 9–10; Ratz and on a comprehensive count and it is Curtailment of Yellow-Eyed Penguin’s Thompson 1999, p. 205). Current lower than previous estimates. It is Habitat or Range terrestrial habitats range from native unclear whether numbers have declined Deforestation and the presence of forest to grazed pasture (McKinlay 2001, in the past 2 decades or whether grazing animals and agricultural p. 10). In some places, they nest in previous estimates, which extrapolated activities have destroyed or degraded restored areas and, in other places, they from partial surveys, were overestimates nest in areas where livestock are still yellow-eyed penguin habitat throughout (Massaro and Blair 2003, p. 110), but the species’ range on the mainland present (McKinlay 2001, p. 10). Prior to evidence points to the latter. For land clearing for agriculture by South Island of New Zealand and much example, Darby and Seddon (1990, p. European settlers, historic habitat was of the decline in breeding numbers can 58) provided 1988 estimates of 470 to in coastal forests and shrub margins be attributed to loss of habitat (Darby (Marchant and Higgins 1990, p. 237). 600 breeding pairs which were and Seddon 1990, p. 60; Taylor 2000, p. The New Zealand Department of extrapolated from density estimates. In 94). The primary historic habitat of the Conservation (DOC) published the the Hoiho Recovery plan, which reclusive yellow-eyed penguin on the Hoiho (Megadyptes antipodes) Recovery reported these 1998 numbers, it is noted southeast coast of the South Island of Plan (2000–2025) (Recovery Plan) in that, ‘‘In the case of Stewart Island, New Zealand was the podocarp 2001 to state the New Zealand DOC’s these figures should be treated with a hardwood forest. During the period of intentions for the conservation of this great deal of skepticism. Only a partial European settlement of New Zealand, species, to guide the New Zealand DOC survey was completed in the early almost all of this forest has been cleared in its allocation of resources, and to 1990’s’’ (McKinlay 2001, p. 8). Darby for agriculture, with forest clearing promote discussion among the (2003, p. 148), one of the authors of the activities continuing into at least the interested public (McKinlay 2001, p. earlier estimate, subsequently reviewed 1970s (Sutherland 1999, p. 18). This has 20). The goal of the Recovery Plan, survey data from the decade between eliminated the bulk of the historic which updates a 1985–1997 plan 1984 and 1994 and revised the estimates mainland breeding vegetation type for previously in place, is to increase for this region down to 220 to 400 pairs. this species (Marchant and Higgins yellow-eyed penguin numbers and have In conclusion, while it is reported that 1990, p. 237). With dense hardwood active community involvement in their the numbers of birds at Stewart and forest unavailable, the breeding range of conservation. The primary emphasis Codfish Islands have declined yellow-eyed penguins has now spread over the 25-year period is to ‘‘retain, historically (Darby and Seddon 1990, p. into previously unoccupied habitats of manage and create terrestrial habitat’’ 57), it is unclear to what extent declines scrubland, open woodland, and pasture (Marchant and Higgins 1990, p. 237). and to ‘‘investigate the mortality of are currently underway. Houston (2008, Here the breeding birds are exposed to hoiho at sea’’ (McKinlay 2001, p. 2). p. 1) reported numbers are stable in all Current estimates place the total new threats. In agricultural areas, areas of Stewart and Codfish Islands, population at 1,602 breeding pairs breeding birds are exposed to trampling except in the northeast region of Stewart (Houston 2007, p. 3). of nests by domestic cattle. For example, In the recent past, the number of Island where disease and starvation are at the mainland Otago Peninsula in breeding pairs has undergone dramatic impacting colonies, as discussed in 1985, 25 out of 41 nests (60 percent) periods of decline and fluctuation in detail below. were destroyed by cattle (Marchant and parts of its range on the mainland of the In the sub-Antarctic island range of Higgins 1990, p. 238). In some cases, South Island. Records suggest that the the yellow-eyed penguin, there are an efforts to fence penguin reserves to mainland populations declined at least estimated 404 pairs on Campbell Island reduce trampling by cattle have created 75 percent from the 1940s to 1988, (down from 490 to 600 pairs in 1997); more favorable conditions for attack by when there were 380 to 400 breeding and 570 pairs on the Auckland Islands introduced predators (see Factor C) pairs (Darby and Seddon 1990, p. 59). (Houston, 2007, p. 3). (Alterio et al. 1998, p. 187). Yellow-eyed There have been large fluctuations since penguins are also more frequently The yellow-eyed penguin is listed as a low of about 100 breeding pairs in the exposed to fire in these new scrubland ‘Endangered’ by IUCN (International 1989–90 breeding season to over 600 in and agricultural habitats, such as a Union for Conservation of Nature) the 1995–96 breeding season (McKinlay devastating fire in 1995 at the Te Rere 2001, p. 10). Current mainland counts criteria (BirdLife International 2007, p. Yellow-eyed Penguin Reserve in the indicate 450 breeding pairs on the 1). When the New Zealand Action Plan southern portion of the mainland of the southeast coast of the mainland of the for Seabird Conservation was completed South Island, which killed more than 60 South Island (Houston 2007, p. 3). As in 2000, the species’ IUCN Status was adult penguins out of a population of recently as the 1940s, there were ‘Vulnerable,’ and it was listed as 100 adults at the reserve as well as reported to be individual breeding areas Category B (second priority) on the fledgling chicks on shore (Sutherland where penguin numbers were estimated Molloy and Davis threat categories 1999, p. 2; Taylor 2000, p. 94). Five in the hundreds; in 1988, only three employed by the New Zealand DOC years after the fire, there was little breeding areas on the whole of the (Taylor 2000, p. 33). On this basis, the evidence of recovery of bird numbers at South Island had more than 30 breeding species was placed in the second tier in this reserve (Sutherland 1999, p. 3), pairs (Darby and Seddon 1990, p. 59). New Zealand’s Action Plan for Seabird although there had been considerable Just across the Fouveaux Strait at the Conservation. The species is listed as efforts to restore the land habitat southern tip of the South Island, at ‘acutely threatened—nationally through plantings, creation of firebreaks, Stewart Island and nearby Codfish vulnerable’ on the New Zealand Threat and predator control. Island, yellow-eyed penguin Classification System List (Hitchmough Habitat recovery efforts, dating as far populations numbered an estimated 178 et al. 2007, p. 45; Molloy et al. 2002, p. back as the late 1970s and set out in the pairs in the early 2000s (Massaro and 20). 1985–1997 Hoiho Species Conservation

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Plan (McKinlay 2001, p. 12), have examine why these goals have not been found to flourish even in the presence focused on protecting and improving met. The species’ island breeding of disease. Browne et al. (2007, p. 81) breeding habitats. Habitat has been habitats have either not been impacted found dietary differences between the purchased or reserved for penguins at or, if historically impacted, the causes of two islands, with Stewart Island chicks the mainland Otago Peninsula, North disturbance have been removed. For this receiving meals comprised of fewer Otago and Catlins sites, with 20 reason, we find that the present or species and less energetic value than mainland breeding locations (out of an threatened destruction, modification, or those at Codfish Island. The foraging estimated 32 to 42) reported to be under curtailment of its terrestrial habitat or grounds of these two groups do not ‘‘statutory’’ protection against further range is not a threat to the species in overlap, suggesting that local-scale habitat loss (Ellis 1998, p. 91) and new, any portion of its range. influences in the marine environment currently unoccupied areas have been In the marine environment, yellow- (Mattern et al. 2007, p. 115) are acquired to provide the potential to eyed penguins forage locally around impacting the Stewart Island penguins. support increased populations in the colony sites during the breeding season. These authors concluded that future (McKinlay 2001, p. 12). Fencing They feed on a variety of fish and squid degradation of benthic habitat by and re-vegetation projects have been species including opal fish commercial oyster dredging is limiting carried out to restore nesting habitat to (Hemerocoetes monopterygius), blue foraging habitat for yellow-eyed exclude grazing animals from breeding cod (Parapercis colias), sprat (Sprattus penguins at Stewart Island. The 178 habitats (McKinlay 2001, p. 12). Despite antipodum), silverside (Argentina pairs on Stewart Island and adjacent these efforts, yellow-eyed penguin elongata), red cod (Pseudophycis islands make up 11 percent of the total numbers on the mainland have not bachus), and arrow squid (Nototodarus current population, and only a portion increased and have continued to sloani). Birds tracked from breeding of this number are affected by the fluctuate dramatically around low levels areas on the Otago Peninsula on the reported degradation of benthic habitat of abundance, with no sustained mainland of the South Island foraged by fisheries activities. Therefore, while increases over the last 27 years over the continental shelf in waters from the present or threatened destruction, (McKinlay 2001, p. 10). Although we 131 to 262 feet (ft) (40 to 80 meters (m)) modification, or curtailment of its did not rely on future conservation deep. In foraging trips lasting on average marine habitat or range by commercial efforts by New Zealand in our analysis 14 hours, they ranged a median of 8 mi oyster dredging is a threat to chick of threats, we note that efforts in the (13 km) from the breeding area (Moore survival for some colonies at Stewart second phase of the Hoiho Recovery 1999, p. 49). Foraging ranges utilized by Island, we find that the present or Plan continue to focus on managing, birds at the offshore Stewart Island were threatened destruction, modification, or protecting, and restoring the terrestrial quite small (ca. 7.9 mi2 (20.4 km2)) curtailment of its marine habitat or habitat of the yellow-eyed penguin compared to the areas used by birds at range is not a threat to the species in (McKinlay 2001, p. 15). the adjacent Codfish Islands (ca. 208 any other portion of its range. On the offshore and sub-Antarctic mi2 (540 km2)) (Mattern et al. 2007, p. islands of its range, feral cattle and 115). Factor B. Overutilization for sheep destroyed yellow-eyed penguin There is evidence that modification of Commercial, Recreational, Scientific, or nests on Enderby and Campbell Islands the marine environment by human Educational Purposes (Taylor 2000, p. 94). All feral animals activities may reduce the viability of The yellow-eyed penguin has become were removed from Enderby Island in foraging areas for yellow-eyed penguins an important part of the ecotourism 1993, and from Campbell Island in 1984 on a local scale. Mainland population industry on the mainland South Island (cattle) and 1991 (sheep) (Taylor 2000, declines in 1986–1987 have been of New Zealand, particularly around the p. 95). There has been reported to be attributed to ‘‘changes in the marine Otago Peninsula and the Southland very little change in the terrestrial environment and failure of quality areas. We are not aware of tourism habitat of the yellow-eyed penguin food’’ (McKinlay 2001 p. 9), but we have activities in the island portions of the habitat on these islands (McKinlay not found evidence attributing recent range of the yellow-eyed penguin. 2001, p. 7). population changes at either mainland Yellow-eyed penguins are extremely Significant public and private efforts colonies or the more distant Campbell wary of human presence and will not have been undertaken in New Zealand and Auckland Islands’ colonies to land on the beach if humans are in over past decades to protect and restore changes in the marine environment. sight. They select nest-sites with dense yellow-eyed penguin breeding habitat Mattern et al. (2007, p. 115) vegetative cover and a high degree of on the mainland South Island. concluded that degradation of benthic concealment (Marchant and Higgins Individual locations remain susceptible habitat by commercial oyster dredging is 1990, p. 240) and prefer to be shaded to fire or other localized events, but the limiting viable foraging habitat and from the sun and concealed from their threat of manmade habitat destruction increasing competition for food for a neighbors (Seddon and Davis 1989, p. has been reduced over the dispersed small portion of Stewart Island 653). Given these secretive habits, range of the species on the mainland penguins breeding in areas on the research has focused on the potential of South Island. Nevertheless, recovery northeast coast of that island, resulting increasing tourism to impact yellow- goals for mainland populations have not in chick starvation (King 2007, p. 106). eyed penguins. In one study, yellow- been achieved. Specifically, the goal in Chick starvation and disease are the two eyed penguins showed lower breeding the 1985–1997 recovery plan of most important causes of chick death at success in areas of unregulated tourism maintaining two managed mainland the northeast Stewart Island study than in those areas visited infrequently populations, each with a minimum of colonies (King 2007, p. 106), and poor for monitoring purposes only (McClung 500 pairs was not achieved (McKinlay chick survival and, presumably, poor et al. 2004, p. 279). In another study, no 2001, p. 13) and, 8 years into the 2000– recruitment of new breeding pairs, is the impacts of tourist presence were found 2025 recovery plan, the long-term goal main cause of a decline in the number (Ratz and Thompson 1999, p. 208). In to increase yellow-eyed penguin of breeding pairs (King 2007, p. 106). At another study disturbance was populations remains elusive. In our the adjacent Codfish Island, where food associated with increased corticosterone analysis of other threat factors, in is more abundant and diverse (Browne levels (associated with stress) in parents particular Factor C, we will further et al. 2007, p. 81), chicks have been and lower fledgling weights of chicks

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(Ellenberg et al. 2007a, p. 54). The key eyed penguins found that the mortality endemic disease provide a reservoir for impact from human disturbance features, climatological data, and infection of new chicks through the described in the Recovery Plan is that pathological and serological findings at vector of blackflies. No viable method of incoming yellow-eyed penguins may the time conformed to those known for treatment for active infections in either not come ashore or may leave the shore avian malaria outbreaks (Graczyck et al. chicks or adults has been identified. prematurely after landing. These and 1995, p. 404), leading the authors to At the mainland Otago Peninsula in more recent studies (Ellenberg et al. conclude that avian malaria was the 2004–05 breeding season, an 2007b, p. 31) have provided information responsible for the die-off. These outbreak of Corynebacterium infection that is already being used in the design authors associated the outbreak with a (diptheritic stomatitis, Corynebacterium of visitor management and control period of warmer than usual sea and amycolatum) caused high mortality in procedures at yellow-eyed penguin land temperatures. More recently, yellow-eyed penguin chicks (Houston viewing areas to minimize disturbance Sturrock and Tompkins (2007, pp. 158– 2005, p. 267) at many colonies in the to breeding pairs. The Hoiho Recovery 160) looked for DNA from malarial mainland range and on Stewart Island Plan identifies 14 mainland areas where parasites in yellow-eyed penguins and (where it may have been a contributing current practices of viewing yellow- found that all samples were negative. factor to the mortalities discussed above eyed penguins already minimize This suggests that earlier serological from Leucocytozoon). Mortality was not tourism impacts on yellow-eyed tests were overestimating the prevalence recorded at Codfish Island or at the sub- penguins and recommends that of infection or that infection was Antarctic islands (Auckland and practices in these areas remain transient or occurred in age classes not Campbell Islands). The disease unchanged. Eight additional areas are sampled in their current study. While produced lesions in the chicks’ mouths identified as suitable for development as this raises questions as to the role of and upper respiratory tract and made it tourist destinations to observe yellow- avian malaria in the 1990 mortality difficult for the chicks to swallow. All eyed penguins where minimization of event, the authors noted, given the chicks at Otago displayed the symptoms tourism impacts can be achieved spread of avian malaria throughout New with survival being better in older, (McKinlay 2001, p. 21). These existing Zealand and previous results indicating larger chicks. Treatment with broad lists are being used to guide the infection and mortality in yellow-eyed spectrum antibiotics was reported to approval of tourism concessions by the penguins, that continued monitoring of have achieved ‘‘varying results,’’ and it New Zealand DOC. Overall, under the malarial parasites in this species should is not known how this disease is plan, tourism is being directed to those be considered an essential part of their triggered (Houston 2005, p. 267). sites where impacts of tourism can be management until the issue of their In summary, disease has seriously minimized. susceptibility is resolved. There have impacted both mainland and Stewart Island populations of yellow-eyed Tourism is the primary commercial, been no subsequent disease-related die- penguins over the past two decades. A recreational, and educational use of the offs of adult yellow-eyed penguins at mainland mortality event in 1990, yellow-eyed penguin. We have found no mainland colonies since the 1990s attributed to avian malaria, killed 31 reports of impacts on this species from (Houston 2007, p. 3). scientific research or any other percent of the mainland adult commercial, recreational, scientific, or The haemoparasite Leucocytozoon, a population of yellow-eyed penguin. educational purposes. blood parasite spread by blackflies, was While there is lack of scientific certainty We find that the New Zealand DOC first identified in yellow-eyed penguins over the impact of malaria on yellow- through its Hoiho Recovery Plan has put at the offshore Stewart and Codfish eyed penguins, the overall spread of this in place measures, in cooperation with Islands in 2004 (Hill et al. 2007, p. 96) disease, the small population size of conservation, tourism, and industry and was one contributor to high chick yellow-eyed penguins, and evidence of stakeholders, to understand and mortality at Stewart Islands in 2006–07, its presence in their populations lead us minimize the impacts of tourism which involved loss of all 32 chicks at to conclude that this is an ongoing activities on the yellow-eyed penguin. the northeast Anglem Coast monitoring threat. Disease events contributed to or For this reason, we find that area of the Yellow-eyed Penguin Trust. caused mortality of at least 20 percent overutilization for commercial, This disease may have spread from of chicks at Stewart Island in 2006–07 recreational, scientific, or educational Fiordland crested penguins which are and complete mortality in local purposes is not a threat to the yellow- known to house this disease (Taylor colonies. The continuing contribution to eyed penguin in any portion of its range. 2000, p. 59). Chick mortality was also yellow-eyed penguin chick mortality reported at this area in 2007–08 from Leucocytozoon and diptheritic Factor C. Disease or Predation (Houston, pers. comm. 2008). It is not stomatitus at Stewart Island and the Disease has been identified as a factor clear if the Leucocytozoon predisposes recent high mortalities of mainland influencing both adult and chick animals to succumb from other factors, chicks from diptheritic stomatitis mortality in yellow-eyed penguins. We such as starvation or concurrent indicate the potential for future have identified reports of one major infection with other pathogens (such as emergence or intensified outbreaks of disease outbreak involving adult diphtheritic stomatitis), or is the factor these or new diseases. The emergence of penguins and ongoing reports of disease that ultimately kills them, but over 40 disease at both mainland and Stewart in yellow-eyed penguin chicks. percent of chick mortality over three Island populations in similar time Initial investigation of a major die-off breeding seasons at Stewart Island study periods and the likelihood that of adult yellow-eyed penguins at Otago colonies was attributed to disease (King Leucocytozoon was spread to the Peninsula in 1990 failed to identify the 2007, p. 106). The survival of infected yellow-eyed penguin from the Fiordland etiology of the deaths (Gill and Darby chicks at nearby Codfish Island, where crested penguin point out the significant 1993, p. 39). This involved mortality of food is more abundant, indicates that possibility of future transmission of 150 adult birds or 31 percent of a nutrition can make a difference in known diseases between colonies or mainland population estimated at the whether mortality occurs in diseased between species, and the possibility of time to include 240 breeding pairs. chicks (Browne et al. 2007, p. 81; King emergence of new diseases at any of the Subsequent investigation of avian 2007, p. 106). Healthy adults who are four identified breeding locations of the malaria seroprevalence among yellow- infected, but not compromised, by this yellow-eyed penguin. Therefore, on the

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basis of the best available scientific mammals had been mitigated by hookeri). Since 1985, sea lions have re- information, we conclude that disease is trapping and shooting, and no colonized the area and predation of a threat to the yellow-eyed penguin substantial predation events had yellow-eyed penguins has increased. throughout all of its range. occurred between 1984 and 2005. We do Penguin remains have been more Predation of chicks, and sometimes not have information on the extent to frequently found in sea lion scat adults, by introduced stoats (Mustela which anti-predator measures are in samples. Two penguin breeding sites in erminea), ferrets (M. furo), cats (Felis place for the remaining 80 to 90 percent close proximity to the founding nursery catus), and dogs (Canis domesticus) is of yellow-eyed penguin nests on the area of female sea lions have been the principal cause of yellow-eyed mainland of the South Island of New particularly impacted. The number of penguin chick mortality on the South Zealand. Other efforts to remove or nests at these two colonies has declined Island with up to 88.5 percent of chicks discourage predation have not been as sharply since predation was first in any given habitat being killed by successful. A widely applied approach observed and when colonization by predators (Alterio et al. 1998, p. 187; of establishing ‘‘vegetation buffers’’ female sea lions first took place. As Clapperton 2001, p. 187, 195; Darby and around yellow-eyed penguin nest sites discussed above, these two sites are Seddon 1990, p. 45; Marchant and to act as barriers between predators and among those which have been Higgins 1990, p. 237; McKinlay et al. their prey was found to actually intensively and successfully protected 1997, p. 31; Ratz et al. 1999, p. 151; increase predation rates. Predators from introduced terrestrial predators Taylor 2000, pp. 93–94). In a 6-year, preferred the buffer areas and utilized between 1984 and 2005 (Lalas et al. long-term study of breeding success of penguin paths within them to gain easy 2007, p. 237) so declines can be directly yellow-eyed penguins in mainland access to penguin nests (Alterio et al. attributed to sea lion predation. The breeding areas, predation accounted for 1998, p. 189). Given these conflicting predation has been attributed to one 20 percent of chick mortality overall, reports, we can not evaluate to what female, the daughter of the founding and was as high as 63 percent overall in extent management efforts are moving animal. Population modeling of the one breeding season (Darby and Seddon toward the goal of protection of 50 effect of continued annual kills by sea 1990, p. 53). Proximity to farmland and percent of all yellow-eyed penguin nests lions predicts the collapse of small grazed pastures was found to be a factor on the mainland. Therefore, we populations (fewer than 100 nests) accounting for high predator densities conclude that predation from subject to targeted predation by one and high predation with 88 percent introduced terrestrial mammals is a individual sea lion. At the current time, predation at one breeding area adjacent threat to the yellow-eyed penguin on the none of the 14 breeding sites at Otago to farmland (Darby and Seddon 1990, p. mainland South Island of New Zealand. Peninsula exceed 100 nests. No action 57). In a study of cause of death of 114 Offshore, at Stewart and Codfish has been taken to control this predation yellow-eyed penguin carcasses found on Islands, there are a number of although removal of predatory the South Island mainland between introduced predators, but mustelids are individuals has been suggested (Lalas et 1996 and 2003, one-quarter were absent. Initial research indicated that al. 2007, pp. 235–246). Similar attributed to predation, with dogs and the presence of feral cats could be predation by New Zealand sea lions was mustelids the most common predators depressing the population of yellow- observed at Campbell Island in 1988 (Hocken 2005, p. 4). eyed penguins at Stewart Island relative and was considered a probable cause for In light of this threat, protection of to adjacent islands without feral cats local declines there (Moore and Moffat chicks from predators is a primary (Massaro and Blair 2003, p. 107). 1992, p. 68). Some authors have objective under the second Hoiho Subsequent research has not found speculated that New Zealand sea lion Recovery Plan (2000–2025). Approaches direct evidence of predation by Stewart may take yellow-eyed penguins at to predator control are being established Island’s large population of feral cats Stewart Island, but there are no and refined at breeding sites on the (King 2007, p. 106). Weka (Gallirallus documented reports (Darby 2003, p. mainland (McKinlay et al. 1997, pp. 31– australis) have been eradicated from 152). 35), targeting ferrets, stoats, and cats. Codfish Island, but may prey on eggs Because of its continued role in The New Zealand DOC has concluded and small chicks in the Fouveaux Strait suppressing the recovery of yellow-eyed that this is a threat which may be and some breeding islands in the penguin populations and because of the manageable with trapping or other cost- Stewart Island region at the southern tip continued impact of introduced effective methods to protect chicks in of New Zealand (Darby 2003, p. 152; terrestrial and avian predators and nests (McKinlay 2001, p. 18). Analysis Massaro and Blair 2003, p. 111). native marine predators, we find that in the recovery plan indicates that a Some islands, including the Codfish predation is a threat to the yellow-eyed minimum protection of 43 percent of and Bravo group, have Norway rats penguin throughout all of its range. nests would be needed to ensure (Rattus norvegicus, R. exulans, R. In summary, we find that disease and population growth (McKinlay 2001, p. rattus), which are thought to prey on predation, which have impacted both 18). The recovery plan establishes a goal small chicks (Massaro and Blair 2003, p. mainland and island populations, are a of protecting 50 percent of all South 107). Even though there are Norway rats threat to the yellow-eyed penguin Island nests from predators between present at Campbell Island, evidence of throughout all of its range now and in 2000 and 2025. Where intensive egg or chick predation by terrestrial the foreseeable future. predator control regimes have been put mammalian predators was not observed Factor D. Inadequacy of Existing in place, they are effective (McKinlay et at during two breeding seasons (Taylor Regulatory Mechanisms al. 1997, p. 31), capturing 69 to 82 2000, pp. 93–94). percent of predators present. In a long- At Auckland Island, it is reported that All but seven seabird species in New term analysis of three closely monitored feral pigs (Sus scrofa) probably kill Zealand, including the yellow-eyed study colonies, which make up roughly adults and chicks (Taylor 2000, pp. 93). penguin, are protected under New half the nests at the Otago Peninsula Even as objectives are set to attempt Zealand’s Wildlife Act of 1953, which and about 10 to 20 percent of the nests to bring terrestrial predators under more gives absolute protection to wildlife on the mainland, Lalas et al. (2007, effective control, an emerging threat at throughout New Zealand and its p.237) found that the threat of predation Otago Peninsula is predation by the surrounding marine economic zone. No on chicks by introduced terrestrial New Zealand sea lion (Phocarctos one may kill or have in their possession

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any living or dead protected wildlife protections for breeding habitat through habitat modification by commercial unless they have appropriate authority. reservation or covenant (McKinlay 2001, oyster dredging is a threat to local The species inhabits areas within p. 12). Best available information does yellow-eyed penguin colonies at Stewart Rakiura National Park, which not allow us to evaluate in detail the Island, but we have not found evidence encompasses Stewart and Codfish progress in meeting the eight objectives of direct competition for prey between Island (Whenua Hou). Under section 4 of the 2000–2025 recovery plan; yellow-eyed penguins and human of the National Parks Act of 1980 and although, as discussed elsewhere, the fisheries activities. While following Park bylaws, ‘‘the native plants and population recovery goals of the original penguins from mainland colonies fitted animals of the parks shall as far as earlier plan continue to be hard to reach with Global Positioning System (GPS) possible be preserved and the for all but the Auckland Islands, and the dive loggers, Mattern et al. (2005, p. introduced plants and animals shall as development of anti-predator measures 270) noted that foraging tracks of adult far as possible be eradicated.’’ In is an ongoing challenge. We are aware, penguins were remarkably straight. addition to national protection, all New as discussed in analysis of other threat They hypothesized that individuals Zealand sub-Antarctic islands, factors that concerted public and private were following dredge marks from including Auckland and Campbell efforts on these objectives continue. bottom trawls, but there is not Islands, are inscribed on the World However, in the absence of concrete information to indicate that fishery Heritage List (2008, p.16). We do not information on implementation of the interaction has any impact on the have information to evaluate whether plan and reports on its efficacy, we did penguins. Therefore, we find that and to what extent these National Park not rely on future measures proposed in competition with fisheries is not a threat bylaws reduce threats to the yellow- the Hoiho Recovery Plan in our threat to this species in any portion of its eyed penguin in these areas. factor analysis. range. The yellow-eyed penguin is New Zealand has in place The New New Zealand’s National Plan of considered a ‘threatened’ species and Zealand Marine Oil Spill Response Action to Reduce the Incidental Catch of measures for its protection are outlined Strategy, which provides the overall Seabirds in New Zealand Fisheries, under the Action Plan for Seabird framework to mount a response to prepared by the Ministry of Fisheries Conservation in New Zealand of the marine oil spills that occur within New and New Zealand DOC (MOF and DOC New Zealand DOC (Taylor 2000, pp. 93– Zealand’s area of responsibility. The 2004, p. 57), listed yellow-eyed 94) (see discussion of Factor D for aim of the strategy is to minimize the penguins as being incidentally caught in Fiordland crested penguin). Ellis et al. effects of oil on the environment and (1998, p. 91) reported that habitat has people’s safety and health. The National inshore set fishing nets (set nets). A been purchased or reserved for penguins Oil Spill Contingency Plan promotes a study of bycatch of yellow-eyed at the mainland Otago Peninsula, North planned and nationally coordinated penguins along the southeast coast of Otago and Catlins sites, with 20 response to any marine oil spill that is South Island of New Zealand from mainland breeding locations (out of an beyond the capability of a local regional 1979–1997 identified gill-net estimated 32 to 42 sites) reported to be council or outside the region of any entanglement as a significant threat to under ‘‘statutory protection’’ against local council (Maritime New Zealand the species (Darby and Dawson 2000, p. further habitat loss. We have not found 2007, p. 1). As discussed below under 327). Mortality was highest in areas a complete breakdown of the types of Factor E, rapid containment of spills in adjacent to the Otago Peninsula legal protection in place for these areas, remote areas and effective triage breeding grounds, with about 55 of 72 of the percent of the total mainland response under this plan has shown gill-netted penguins found in this area population encompassed under such these to be effective regulatory (Darby and Dawson 2000, p. 329). An areas, or of the effectiveness, where they mechanisms (New Zealand Wildlife analysis of 185 carcasses collected are in place, of such regulatory Health Center 2007, p. 2; Taylor 2000, between 1975 and 1997 found that 42 mechanisms in reducing the identified p. 94). (23 percent) showed features consistent threats to the yellow-eyed penguin. Following a review of the best with mortality from gill-net As a consequence of its threatened available information, which indicates entanglement. In that period, a further designation, a Hoiho Recovery Plan that despite the existence of general, or 30 entanglements were reported to 2000–2025 has been developed. This in some cases specific, protective or officials (Darby and Dawson 2000, p. plan builds on the first 1985–1997 regulatory measures to address the 327). While these numbers may appear phase of Hoiho Recovery efforts threats to the yellow-eyed penguin, small for the timeframe under study, the (McKinlay 2001, pp. 12–13). This plan predation pressure, fisheries bycatch, authors consider them to be lays out future objectives and actions to local marine habitat modification underestimates of actual bycatch meet the long-term goal of increasing through oyster dredging, and disease mortality (Darby and Dawson 2000, p. yellow-eyed penguin populations and continue as threats to the yellow-eyed 331) and, given the small sizes of local achieving active community penguin, we find that inadequacy of yellow-eyed penguin concentrations, engagement in their conservation regulatory mechanisms is a threat to the significant to the maintenance of (McKinlay 2001, pp. 1–24). The yellow-eyed penguin throughout all of breeding colonies and the survival of Recovery Plan outlines proposed its range. adults in the population. Most measures to address chronic factors entanglements reported by Darby and historically affecting individual Factor E. Other Natural or Manmade Dawson (2000, p. 331) are from a small colonies, such as destruction or damage Factors Affecting the Continued geographic area at or near the Otago to colonies due to fire, livestock grazing Existence of the Species Peninsula, near the small concentrations and other manmade disturbance, The Action Plan for Seabird of yellow-eyed penguins (in 1996 for predation by introduced predators, Conservation in New Zealand (Taylor example, there were approximately 350 disease, and the impact of human 2000, p. 94) reported that there is no breeding pairs of yellow-eyed penguin disturbance (especially through tourism evidence that commercial or on the Otago Peninsula). Given these activities) (McKinlay 2001, pp. 15–22). recreational fishing is impacting prey small numbers, the authors report that Another objective of the plan is to availability for the yellow-eyed penguin. bycatch may be severe at a local scale; providing enduring legal guarantees of Under Factor A, we have concluded that one small colony inside the entrance to

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Otago harbor suffered 7 bycatch managed, can have direct effects on yellow-eyed penguin in any portion of mortalities and was subsequently marine seabirds such as the yellow-eyed its range. abandoned. The death of 32 birds along penguin. In the range of the yellow-eyed In summary, we find that fisheries the north Otago coast over the period of penguin, the sub-Antarctic Campbell bycatch is a threat to mainland the study is significant in light of the and Auckland Islands are remote from populations of the yellow-eyed penguin reported breeding population of only 39 shipping activity and the consequent in the foreseeable future, but is not a pairs in this region, and, at Banks risk of oil or chemical spills is low. The threat in any other portion of the range Peninsula, 7 reported mortalities Stewart Islands populations at the of the species. occurred where there were only 8–10 southern end of New Zealand and the Foreseeable Future breeding pairs (Darby and Dawson 2000, southeast mainland coast populations p. 331). are in closer proximity to vessel traffic The term ‘‘threatened species’’ means any species (or subspecies or, for In response to bycatch of various and human industrial activities which vertebrates, distinct population species, set net bans have been may increase the possibility of oil or segments) that is likely to become an implemented in the vicinity of the chemical spill impacts. Much of the endangered species within the Banks Peninsula, which has been range of the yellow-eyed penguin on foreseeable future throughout all or a designated as a marine reserve. The 4- mainland New Zealand lies near month set net ban is primarily designed significant portion of its range. The Act Dunedin, a South Island port city, and does not define the term ‘‘foreseeable to reduce entanglements of Hector’s a few individuals breed at Banks dolphin (Cephalorhynchus hectori), as future.’’ For the purpose of this Peninsula just to the south of proposed rule, we defined the well as yellow-eyed penguins and Christchurch, another major South white-flippered penguins (NZ DOC ‘‘foreseeable future’’ to be the extent to Island port. While yellow-eyed 2007, p. 1). Early reports were that this which, given the amount and substance penguins do not breed in large colonies, ban had been widely disregarded of available data, we can anticipate their locally distributed breeding groups (Taylor 2000, p. 70), and based on the events or effects, or reliably extrapolate are found in a few critical areas of the best available information we are unable threat trends, such that we reasonably coast of the South Island and its conclude that these measures at the believe that reliable predictions can be offshore islands. A spill event near the Banks Peninsula have been effective in made concerning the future as it relates mainland South Island city of Dunedin reducing bycatch of yellow-eyed to the status of the species at issue. and the adjacent Otago Peninsula could penguins. In fact, the Hoiho Recovery In considering the foreseeable future Plan states that bycatch is likely the have a major impact on the 14 breeding as it relates to the status of the yellow- largest source of mortality at sea and sites documented there. Non-breeding eyed penguin, we considered the threats outlines the need for research and season distribution along the same acting on the yellow-eyed penguin, as liaison with fisheries managers to coastlines provides the potential for well as population trends. We inform implementation of further significant numbers of birds to considered the historical data to identify measures to reduce the impact of fishing encounter spills at that time as well. any relevant existing trends that might operations on yellow-eyed penguins Two spills have been recorded in this allow for reliable prediction of the (McKinlay 2001, p. 19). We do not have overall region. In March 2000, the future (in the form of extrapolating the information on whether these proposed fishing vessel Seafresh 1 sank in Hanson trends). measures have been implemented. Bay on the east coast of Chatham Island With respect to the yellow-eyed Therefore, for purposes of this analysis, and released 66 T (60 t) of diesel fuel. penguin, the available data indicate that we did not rely on these proposed Rapid containment of the oil at this historical declines, which were the measures to evaluate incidental take remote location prevented any wildlife result of habitat loss and predation, from gill-net entanglement. casualties (New Zealand Wildlife Health continue in the face of the current With respect to the potential for Center 2007, p. 2). The same source threats of predation from introduced bycatch from long-line fisheries, which reported that in 1998 the fishing vessel predators, disease, and the inadequacy impact a number of other New Zealand Don Wong 529 ran aground at Breaksea of regulatory mechanisms throughout seabird species, the Action Plan for Islets off Stewart Island. Approximately the species’ range. New or recurrent Seabird Conservation indicates it is 331 T (300 t) of marine diesel was disease outbreaks are reasonably likely unlikely that yellow-eyed penguins will spilled along with smaller amounts of to occur in the future that may result in be caught in long-lines and the National lubricating and waste oils. With further declines throughout the species’ Plan of Action to Reduce the Incidental favorable weather conditions and range. There is no information to Catch of Seabirds in New Zealand establishment of triage response, no suggest that the current effects of Fisheries does not identify this as a casualties of the pollution event were predation by introduced predators will threat to this species (MOF and DOC discovered (Taylor 2000, p. 94). There is be reduced in the foreseeable future, nor 2004, p. 57). no doubt that an oil spill near a that regulatory mechanisms will become Based on the significant gill-net breeding colony could have a major sufficient to address or ameliorate the bycatch mortality of yellow-eyed effect on this species (Taylor 2000, p. threats to the species. Furthermore, the penguins along the southeast coast of 94). However, based on the wide threat of predation by endemic sea lions the South Island of New Zealand, which distribution of yellow-eyed penguins is impacting populations on the has the potential to impact over a around the mainland South Island, mainland and at the Campbell Islands, quarter of the population, we find that offshore, and sub-Antarctic islands, the and we have no reason to believe this fisheries bycatch is a threat to the low number of previous incidents threat will not continue to reduce mainland populations of the yellow- around New Zealand, and the fact that population numbers of the yellow-eyed eyed penguin, but is not a threat in any each was effectively contained under penguin in that area. Bycatch in coastal other portion of its range. the New Zealand Marine Oil Spill gill-net fisheries is a threat to yellow- We have examined the possibility that Response Strategy and resulted in no eyed penguins foraging from mainland oil and chemical spills may impact mortality or evidence of impacts on the breeding areas, despite efforts to yellow-eyed penguins. Such spills, population, we find that oil and regulate this activity; therefore we should they occur and not be effectively chemical spills are not a threat to the expect this threat to continue into the

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foreseeable future. Based on our Disease is an ongoing factor Despite these life history traits, which analysis of the best available negatively influencing yellow-eyed should provide the ability to rebound, information, we have no reason to penguin populations. Disease has and despite public and private efforts believe that population trends will seriously impacted both mainland and undertaken in New Zealand to address change in the future, nor that the effects Stewart Island colonies of yellow-eyed the threats to its survival, the species of current threats acting on the species penguins in the last two decades. In has not recovered. Historical declines will be ameliorated in the foreseeable mainland populations, avian malaria is resulting from habitat loss and future. thought to have led to mortality of 31 predation continue in the face of the percent of the adult population on the Yellow-Eyed Penguin Finding continued impact of predators, disease, mainland of New Zealand in the early and the inadequacy of regulatory Yellow-eyed penguin populations 1990s and an outbreak of mechanisms throughout its range. The number approximately 1,602 breeding Cornybacterium infection cause high threat of predation by endemic sea lions pairs. After severe declines from the chick mortality in 2004–2005 and is impacting populations on the 1940s, mainland yellow-eyed penguin contributed to disease mortality at mainland and at the Campbell Islands. populations have fluctuated at low Stewart Island. Entire cohorts of New or recurrent disease outbreaks are numbers since the late 1980s. The total penguin chicks at one breeding location likely to cause further declines mainland population of 450 breeding at Stewart Island have been lost to the throughout the range in the foreseeable pairs (Houston 2007, p. 3) is well below pathogen Leucocytozoon, especially at future. Just offshore of the southern tip single-year levels recorded in 1985 and times when other diseases and other of the South Island, local breeding 1997 (600 to 650 pairs) and well below stress factors, such as food shortages, groups at Stewart Island have been historical estimates of abundance (Darby were present. Given the ongoing history impacted by disease in concert with and Seddon 1990, p. 59). At Stewart of disease outbreaks at both island and food shortages brought on by alteration Island and its adjacent islands, there are mainland locations, it is highly likely of their marine habitat. At the Auckland an estimated 178 breeding pairs. There that new or renewed disease outbreaks Islands, the population has remained are an estimated 404 pairs at Campbell will impact this species in the stable, but exists at low numbers and, Island where numbers have declined foreseeable future with possible large- like all yellow-eyed penguin since 1997, and 570 pairs at the scale mortality of adults and chicks and populations, is susceptible to the Auckland Islands. consequent breeding failures and emergence of disease and impacts of The primary documented factor population reductions. Emergence or predation. Because of the species’ low affecting yellow-eyed penguin recurrence of such outbreaks on the population size (1,602 breeding pairs), populations is predation by introduced mainland, where there are currently 450 its continued decline in 3 out of 4 areas, and native predators within the species’ breeding pairs, or at island breeding and the threats of predation by breeding range. The impact of predators areas could result in severe reductions is inferred from the decline of this introduced and native species, disease, for a species which totals only 1,602 and fisheries, we find that the yellow- species during the period of introduced breeding pairs range wide. predator invasion and from eyed penguin is likely to become in The yellow-eyed penguin is also danger of extinction within the documentation of continuing predator impacted by ongoing activities in the presence and predation. New Zealand foreseeable future throughout all of its marine environment. Oyster dredging range. laws and the bylaws of the national on the sea floor has been implicated in parks, which encompass some of the food shortages at penguin colonies at Significant Portion of the Range range of the yellow-eyed penguin, Stewart Island, which combined with Analysis provide some protection for this species, disease, has led to years of 100 percent Having determined that the yellow- as well as programs for eradication of mortality of chicks at local breeding eyed penguin is likely to become in nonnative invasive species. However, sites there. Bycatch in coastal gill-net while complete eradication of predators fisheries is a threat to yellow-eyed danger of extinction within the in isolated island habitats may be penguins foraging from mainland foreseeable future throughout all of its possible, permanent removal of the breeding areas despite efforts to regulate range, we also considered whether there introduced mammalian predators on the this activity. are any significant portions of its range mainland has not been achieved, and We considered whether pollution where the species is currently in danger the ongoing threat of predation remains. from oil or chemicals is a threat to the of extinction. Both intensive trapping and physical yellow-eyed penguin. Documented oil The Act defines an endangered protection of significant breeding groups spill events have occurred within the species as one ‘‘in danger of extinction through fencing have proven successful range of this species in the last decade, throughout all or a significant portion of for yellow-eyed penguins at local scales, but there have been no documented its range,’’ and a threatened species as but existing efforts require ongoing direct or indirect impacts on this one ‘‘likely to become an endangered commitment, and not all breeding areas species. Such events are rare and New species within the foreseeable future have been protected. More recently, Zealand oil spill response and throughout all or a significant portion of local-scale predation by New Zealand contingency plans have been shown to its range.’’ The term ‘‘significant portion sea lions reestablishing a breeding be in place, and effective, in previous of its range’’ is not defined by statute. presence at the mainland Otago events; therefore, we have not identified For purposes of this finding, a Peninsula has become a threat to this as a threat to the yellow-eyed significant portion of a species’ range is yellow-eyed penguin populations as this penguin. an area that is important to the rare and endemic Otariid species The yellow-eyed penguin has conservation of the species because it recovers. This threat has also been experienced consistent widespread contributes meaningfully to the documented for Campbell Island. The declines in the past, and declines and representation, resiliency, or threat of predation by introduced low population numbers persist. This redundancy of the species. The species or recovering native species is a species has a relatively high contribution must be at a level such that significant risk for yellow-eyed reproductive rate (compared to other its loss would result in a decrease in the penguins. penguins) and substantial longevity. ability to conserve the species.

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The first step in determining whether contain an important concentration of square mi (1,746 square km), and a species is endangered in a significant certain types of habitat that are Codfish Island is a small island 8.75 portion of its range is to identify any necessary for the species to carry out its square mi (14 square km) located within portions of the range of the species that life-history functions, such as breeding, 6.25 mi (10 km) west of Stewart Island. warrant further consideration. The range feeding, migration, dispersal, or The third and fourth discrete areas of of a species can theoretically be divided wintering. Redundancy of populations yellow-eyed penguin habitat are the into portions in an infinite number of may be needed to provide a margin of sub-Antarctic Auckland Islands and ways. However, there is no purpose to safety for the species to withstand Campbell Island, which lie 300 mi (480 analyzing portions of the range that are catastrophic events. This does not mean km) and 380 mi (608 km), respectively, not reasonably likely to be significant that any portion that provides to the south of the southern tip of the and where the species is not in danger redundancy is a significant portion of South Island. These are clearly isolated of extinction. To identify those portions the range of a species. The idea is to from each other and from other portions that warrant further consideration, we conserve enough areas of the range such of the yellow-eyed penguin range. determine whether there is substantial that random perturbations in the system To determine which areas may information indicating that (i) the act on only a few populations. warrant further consideration, we portions may be significant and (ii) the Therefore, each area must be examined evaluated these four areas of the entire species may be in danger of extinction based on whether that area provides an range of the yellow-eyed penguin. there. In practice, a key part of this increment of redundancy is important to Under the five-factor analysis, we analysis is whether the threats are the conservation of the species. determined that predation, disease, and geographically concentrated in some Adequate representation ensures that inadequacy of regulatory mechanisms way. If the threats to the species are the species’ adaptive capabilities are are threats to the yellow-eyed penguin essentially uniform throughout its conserved. Specifically, the portion throughout all of its range. In addition, range, no portion is likely to warrant should be evaluated to see how it we determined that fisheries bycatch further consideration. Moreover, if any contributes to the genetic diversity of and marine habitat modification from concentration of threats applies only to the species. The loss of genetically oyster dredging are threats to the species portions of the range that are based diversity may substantially in only some portions of its range. unimportant to the conservation of the reduce the ability of the species to Bycatch has been identified as a threat species, such portions will not warrant respond and adapt to future only for mainland populations. Marine further consideration. environmental changes. A peripheral habitat modification through oyster If we identify any portions that population may contribute meaningfully dredging has been identified as a unique warrant further consideration, we then to representation if there is evidence threat at Stewart Island/Codfish Island. determine whether in fact the species is that it provides genetic diversity due to Therefore, we have determined that threatened or endangered in any its location on the margin of the species’ there is substantial information that significant portion of its range. habitat requirements. yellow-eyed penguins on the mainland Depending on the biology of the species, To determine whether any portion of and at the Stewart/Codfish Islands may its range, and the threats it faces, it may the range of the yellow-eyed penguin face a greater level of threat than be more efficient for the Service to warrants further consideration as populations at the Auckland and address the significance question first, possibly endangered, we reviewed the Campbell Islands. In addition, the or the status question first. Thus, if the entire supporting record for this mainland populations of 450 pairs Service determines that a portion of the proposed listing determination with represent more than a quarter of the range is not significant, the Service need respect to the geographic concentration overall reported population of 1,602 not determine whether the species is of threats and the significance of pairs, indicating that this may be a threatened or endangered there. If the portions of the range to the conservation significant portion of the range. Having Service determines that the species is of the species. As previously mentioned, met these two initial tests, a further not threatened or endangered in a we evaluated whether substantial evaluation was deemed necessary to portion of its range, the Service need not information indicated that (i) the determine if this portion of the range is determine if that portion is significant. portions may be significant and (ii) the both significant and endangered. The If the Service determines that both a species in that portion may be currently Stewart Island/Codfish Island portion of the range of a species is in danger of extinction. We have found population represents only 11 percent of significant and the species is threatened that the occurrence of certain threats is the overall population of yellow-eyed or endangered there, the Service will uneven across the range of the yellow- penguins and is small in terms of specify that portion of the range where eyed penguin. On this basis, we geographical area. Given the proximity the species is in danger of extinction determined that some portions of the of this small population to the more pursuant to section 4(c)(1) of the Act. yellow-eyed penguin’s range might numerous mainland portion of the The terms ‘‘resiliency,’’ warrant further consideration as range, with a contiguous distribution to ‘‘redundancy,’’ and ‘‘representation’’ are possible endangered significant portions colonies at the southern tip of the South intended to be indicators of the of the range. Island, we do not find that this portion conservation value of portions of the The yellow-eyed penguin range can of the range is significant relative to the range. Resiliency of a species allows the be divided into four discrete areas. The conservation of this species. We species to recover from periodic first area consists of mainland colonies determined that the Auckland Islands disturbance. A species will likely be distributed along the southeast coast of and Campbell Islands portions of the more resilient if large populations exist the South Island of New Zealand. This range do not satisfy the two initial tests, in high-quality habitat that is mainland area is separated from three because there is not substantial distributed throughout the range of the island based concentrations to the information to suggest that the species species in such a way as to capture the south. Just to the south is the Stewart in those portions may currently be in environmental variability found within Island/Codfish Island group which lies danger of extinction. the range of the species. In addition, the 18.75 mi (30 km) from the mainland Having identified one portion of the portion may contribute to resiliency for South Island across the Fouveaux Strait. range which warrants further other reasons—for instance, it may Stewart Island is a large island of 1,091 consideration—the mainland portion—

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we then proceeded to determine pilchards (Sardinops neopilchardus) At Motunau Island there are an whether this portion is both significant and anchovies (Engraulis australis) estimated 1,650 breeding pairs or about and endangered. (Brager and Stanley 1999, p. 370). 4,590 birds (Ellis et al. 1998, p. 87). This There have been large fluctuations in The petitioner considers the white- population is reported to have increased the mainland population of yellow-eyed flippered penguin to be a separate slightly since the 1960s (Taylor 2000, p. penguins since at least 1980, with species (Eudyptula albosignata) on the 69). On Banks Peninsula, exhaustive cyclical periods of population decline, basis of a 2006 paper by Baker et al. counts of all colonies in 2000–01 and followed by some recovery. As However, this paper (Baker et al. 2006, 2001–02 found 68 colonies with a total described in our threat factor analysis, pp. 13–16) does not treat the specific of 2,112 nests or about 5,870 birds these larger fluctuations have been tied question of the species or subspecies (Challies and Burleigh 2004, p. 5). This to changes in the marine environment status of the group of Eudyptula detailed survey increased the previously and the quality of food, as well as to penguins (little penguins). Among those reported minimum estimates of 550 periodic outbreaks of disease. The researchers who have considered the pairs published in 1998 (Ellis et al. species is described as inherently phylogeny of the little penguin group in 1998, p. 87), which were derived from robust, but recovery from these detail, Banks et al. (2002, p. 35), partial surveys of only easily accessible fluctuations is hampered by chronic supported by Peucker et al. (2007, p. colonies (Challies and Burleigh 2004, p. predation threats as well as by the 126), make a strong case that the white- 1). While baseline information is ongoing impact of fisheries bycatch. The flippered penguin is part of one of two lacking, Challies and Burleigh (2004, p. combination of these cyclical and distinct lineages, or clades, of Eudyptula 5) have estimated that the present chronic factors has kept the mainland species (the Australian-Otago clade and population is less than 10 percent of an population fluctuating within the range the New Zealand clade, which includes estimated tens of thousands of pairs of a few hundred to about 600 pairs over the white-flippered penguin), each occupying the Peninsula prior to the last 3 decades. We have no evidence descended from one common ancestor. European settlement. Detailed that the single factor of fisheries bycatch Limited evidence for subspeciation monitoring of four individual colonies is driving the species toward extinction. within the New Zealand clade is found indicated that severe declines continue, Because the current population trend for in some genetic differences, but the with an overall loss of 83 percent of 489 the mainland populations is one of taxonomic status of these Banks nests monitored over the period from decline and fluctuation around low Peninsula birds remains somewhat 1981–2000 (Challies and Burleigh 2004, numbers, rather than precipitous unclear (Peucker et al. 2007, p. 126). p. 4). decline, and because reproduction and The New Zealand DOC considers the The little penguin is listed as a recruitment are still occurring, we have white-flippered penguin, with its species of ‘Least Concern’ in the IUCN determined the population is not distinct life history and morphological Red List (BirdLife International 2007, p. currently in danger of extinction, but is traits, as the southern end of a clinal 1), there is no separate status for the likely to become so within the variation of the little penguin (Houston white-flippered subspecies. On New foreseeable future. 2007, p. 3). Consistent with the findings Zealand’s Threat Classification system As a result, while the best scientific of Banks et al. (2002, p. 35), the New list, the white-flippered subspecies is and commercial data available allows us Zealand DOC recognizes the white- listed as ‘acutely threatened—nationally to make a determination as to the flippered penguin as an endemic sub- vulnerable,’ indicating small to rangewide status of the yellow-eyed species in its Action Plan for Seabird moderate population and moderate penguin, we have determined that there Conservation in New Zealand (Taylor recent or predicted decline are no significant portions of the range 2000, p. 69). We recognize the findings (Hitchmough et al. 2007, p. 45; Molloy in which the species is currently in of Banks et al. (2002, p. 35), and the et al. 2002, p. 20). This species was danger of extinction. Because we find determination of the New Zealand addressed in the Action Plan for Seabird that the yellow-eyed penguin is not Department of Conservation, and Conservation in New Zealand, and it endangered in the portions of the range consider the white-flippered penguin was ranked as Category B (second that we previously determined to (Eudyptula minor albosignata) as one of priority) on the Molloy and Davis threat warrant further consideration (mainland six recognized subspecies of the little categories employed by the New populations), we need not address the penguin (Eudyptula minor). Zealand DOC (Taylor 2000, p. 33). question of significance for this portion. The overall population of little Summary of Factors Affecting the Therefore, we propose to list the penguins, which are found around White-Flippered Penguin yellow-eyed penguin as threatened Australia and New Zealand, numbers throughout all of its range under the 350,000 to 600,000 birds. The total Factor A. The Present or Threatened Act. breeding population of the white- Destruction, Modification, or Curtailment of White-flippered White-Flippered Penguin (Eudyptula flippered subspecies, which is only Penguin’s Habitat or Range minor albosignata) found in New Zealand, is about 10,460 birds (Challies and Burleigh 2004, p. 1). The terrestrial breeding habitat of the Background It is estimated that the Peninsula-wide white-flippered penguin comprises the The white-flippered penguin breeds population comprised tens of thousands shores of the Banks Peninsula south of on Motunau Island and the Banks of pairs at the time of European Christchurch, New Zealand, and of Peninsula of the South Island of New settlement. White-flippered penguins Motunau Island about 62 mi (100 km) Zealand. Birds disperse locally around were ‘‘very common’’ on the Banks north. Banks Peninsula has a the eastern South Island. Breeding Peninsula in the late 1800s (Challies convoluted coastline of approximately adults appear to remain close to nesting and Burleigh 2004, p. 4). Distribution of 186 mi (300 km), made up of outer coast colonies in the non-breeding season colonies was more widespread on the and deep embayments (Challies and (Taylor 2000, p. 69; Challies and shores of the Banks Peninsula during Burleigh 2004, p. 1). Motunau is a small Burleigh 2004, p. 5; Brager and Stanley the 1950s, with penguins nesting from island of less than 0.3 mi (0.5 km) in 1999, p. 370). White-flippered penguins the seaward headlands around to the length. While cattle or sheep sometimes feed on small shoaling fish such as inshore heads of bays. trample nests at Banks Peninsula, white-

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flippered penguin nest sites are usually than 20 nests) contained either the of predators, this dispersal now leads in rocky areas or among tree roots where remains of penguins that had been breeding birds to settle in areas they are inaccessible to such damage preyed on or other evidence predators accessible to predators where they are (Taylor 2000, p. 69). Fire has also been had been there (Challies and Burleigh eventually killed (Challies and Burleigh identified as a factor which could 2004, p. 4). The five large colonies not 2004, p. 5). One consequence of this threaten white-flippered penguin considered vulnerable to predation were pattern of dispersal and predation is habitat, but we are not aware of either protected by bluffs or, in one that colonies suffer a net loss of documented fire incidents (Taylor 2000, case, located on an island. breeding adults. p. 69). The encroachment of predators On the basis of this information, we destroyed the most accessible colonies Predator trapping started in 1981 and find that the present or threatened first, in a progression from preferred is carried out by a network of volunteers destruction, modification, or habitat at the heads of bays towards the and private landowners around the curtailment of its habitat or range is not coast along a gradient of increasing Banks Peninsula. Some small predator- a threat to the white-flippered penguin coastal erosion. In the 1950s, penguins proof fences were erected to protect in any portion of its range. were still nesting around the heads of vulnerable colonies (Taylor 2000, p. 70; bays. These colonies disappeared soon Williamson and Wilson 2001, p. 435). It Factor B. Overutilization for thereafter (Challies and Burleigh 2004, is not clear how widespread such efforts Commercial, Recreational, Scientific, or p. 4). Of four colonies of greater than 50 are over the large geographical area of Educational Purposes nests on the sides of bays, one was the Banks Peninsula or how successful White-flippered penguins are the destroyed between 1981 and 2000, and they are. Williamson and Wilson (2001, object of privately managed local nest numbers in the other three colonies p. 435) reported on two predator tourism activities at the Banks were reduced by 72 to 77 percent. In trapping programs at two relic colonies Peninsula (Taylor 2000, p. 70). Neither these four colonies, the total number of at the heads of Flea and Stony Bays. the New Zealand Action Plan for nests decreased 83 percent between Their preliminary results indicated Seabird Conservation nor the IUCN 1981 and 2000, from 489 nests down to numbers were stable at Flea Bay, but Conservation Assessment and 85 nests. The surviving colonies are Stony Bay populations of white- Management Plan provides any almost all inside the bays close to the flippered penguins were in decline. evidence that tourism is a factor headlands or on the peripheral coast Even though such trapping efforts began affecting white-flippered penguin (Challies and Burleigh 2004, p. 4), with in 1981, Challies and Burleigh (2004, p. populations (Taylor 2000, p. 69; Ellis et white-flippered penguins breeding 5) concluded on the basis of data al. 1998, p. 87). There is no evidence of primarily on rocky sites backed by collected in the 2000–01 and 2001–02 use of the species for other commercial, bluffs. Challies and Burleigh (2004, p. 4) breeding seasons that the historic recreational, scientific or educational concluded, given the species’ historical decline in white-flippered penguin purposes. habitat and the difficulties of landing at numbers is continuing. On the basis of this information, we these exposed breeding sites, that find that overutilization for commercial, predation has forced white-flippered At Motunau Island, the only other recreational, scientific, or educational penguins into marginal, non-preferred breeding area for this subspecies, there purposes is not a threat to the white- habitat. are no introduced predators. Rabbits, flippered penguin in any portion of its At the present time, colonies are which could have impacted breeding range. largest either on inshore predator-free habitat, were eradicated in 1963 (Taylor islands or in places on the mainland 2000, p. 70). The Action Plan for Factor C. Disease or Predation where predators are being controlled or Seabird Conservation in New Zealand There is no evidence of disease as a which are less accessible to predators. lists pest quarantine measures to threat to the white-flippered penguin. The historic decline in penguin prevent new animal and plant pest The most significant factor impacting numbers is clearly continuing based on species reaching Motunau Island as a white-flippered penguins is predation at the current evidence of predation in needed future management action Banks Peninsula by introduced existing recently surveyed colonies (Taylor 2000, p. 70), but we have no mammalian predators. Ferrets, stoats, (Challies and Burleigh 2004, p. 5). In reports on whether such measures are and feral cats take eggs and chicks and addition to documenting direct overland now in place, and we cannot discount sometimes kill adult white-flippered access to colonies, Challies and Burleigh the current or future risk of predator penguins (Challies and Burleigh 2004, (2004, p. 5) documented predation at introduction to Motunau Island. p.1). Populations are reported to have colonies thought not to be accessible Predators are present at the larger declined drastically since 1980 due to over land. For example, there is predation (Williamson and Wilson evidence that stoats, which are good Banks Peninsula colony (56 percent of 2001, pp. 434–435). Dogs have also been swimmers, are reaching colonies at the nests for the species), but not cited as a potential predator (Taylor otherwise inaccessible parts of the currently at the smaller colony at 2000, p. 69). In the past 25 years, shoreline, indicating that the spread of Motunau Island (46 percent of the nests) predators have overrun colonies at the predation continues. although the risk of future predator accessible heads and sides of bays at The potential for dispersal and introduction to Motunau Island exists. Banks Peninsula, reducing colony establishment of new colonies, which On the basis of information on the distribution to less accessible and more might allow for expansion of white- impact of predators, the failure of remote headlands and outer coasts flippered penguin numbers, is also existing programs to eliminate them, (Challies and Burleigh 2004, p. 4). severely limited by predation. Fifty and the possibility of dispersal of Thirty-four colonies (fifty percent) percent or more of adults attempt to nest predators to current predator-free areas surveyed in 2000 to 2002, containing away from their natal colony. such as Motunau Island, we conclude 1,345 nests (69 percent of the nests at Historically, such movements led to that predation by introduced mammals Banks Peninsula), were considered to be interchange between colonies and is a threat to the white-flippered vulnerable to predation. Seven of the 12 maintenance of colony size even as penguin throughout all of its range largest colonies (each containing more dispersal took place. With the presence currently and in the foreseeable future.

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Factor D. Inadequacy of Existing New Zealand has in place The New white-flippered penguin by fishing Regulatory Mechanisms Zealand Marine Oil Spill Response activities is a threat to this species of All but seven seabird species in New Strategy, which provides the overall penguin throughout all of its range. Zealand, including the white-flippered framework to mount a response to We have examined the possibility that penguin, are protected under New marine oil spills that occur within New oil and chemical spills may impact white-flippered penguins. Such spills, Zealand’s Wildlife Act of 1953, which Zealand’s area of responsibility. The should they occur and not be effectively gives absolute protection to wildlife aim of the strategy is to minimize the managed, can have direct effects on throughout New Zealand and its effects of oil on the environment and marine seabirds, such as the white- surrounding marine economic zone. No people’s safety and health. The National flippered penguin. The entire one may kill or have in their possession Oil Spill Contingency Plan promotes a subspecies nests in areas of moderate any living or dead protected wildlife planned and nationally coordinated shipping volume coming to Port unless they have appropriate authority. response to any marine oil spill that is Lyttelton at Christchurch, New Zealand. The IUCN Conservation Assessment beyond the capability of a local regional This port lies adjacent to, and just north and Management Plan (CAMP) data council or outside the region of any of, the Banks Peninsula and just south sheet for white-flippered penguin (Ellis local council (Maritime New Zealand 2007, p. 1). As discussed below under of Motunau Island. et al. 1998, p. 87) concluded in 1998 On this basis, the Action Plan for that the deteriorating status of this Factor E, rapid containment of spills in remote areas and effective triage Seabird Conservation in New Zealand subspecies was not a high priority for specifically identifies a large oil spill as the New Zealand DOC due to budgetary response under this plan have shown these to be effective regulatory a key potential threat to this species constraints. The CAMP noted that mechanisms (New Zealand Wildlife (Taylor 2000, pp. 69–70) and activities to date had not been Health Center 2007, p. 2; Taylor 2000, recommends that penguin colonies be government funded, but self-funded by p. 94). However, given the location of identified as sensitive areas in oil spill investigators or by grants from non- the only two major concentrations of contingency plans (Taylor 2000, pp. 70– governmental organizations. Since then, white-flippered penguins near a major 71). the New Zealand DOC has adopted the South Island port, we conclude under Two spills have been recorded in the Action Plan for Seabird Conservation, Factor E that oil spills are a threat to this overall region of the South island of which includes recommendations on species. New Zealand and its offshore islands. management of terrestrial threats to the On the basis of a review of available These spills did not impact the white- white-flippered penguin as well as information and on the basis of the flippered penguin. In March 2000, the threats within the marine environment. continued threats of predation, fisheries fishing vessel Seafresh 1 sank in Hanson We did not rely on these measures in bycatch, and oil spills to this species, Bay on the east coast of Chatham Island our analysis because we do not have we find that inadequacy of existing and released 66 T (60 t) of diesel fuel. reports on which measures, if any, have regulatory mechanisms is a threat to the Rapid containment of the oil at this been implemented and how they relate, white-flippered penguin throughout all remote location prevented any wildlife in particular, to efforts to reduce the of its range now and in the foreseeable casualties (New Zealand Wildlife Health threat of predation on white-flippered future. Center 2007, p. 2). The same source penguins at Banks Peninsula. reported that in 1998 the fishing vessel The Banks Peninsula marine waters Factor E. Other Natural or Manmade Don Wong 529 ran aground at Breaksea have special protective status as a Factors Affecting the Continued Islets, off Stewart Island. Approximately marine sanctuary, which was Existence of the Species 331 T (300 t) of marine diesel was established in 1988 and primarily New Zealand’s Action Plan notes that spilled along with smaller amounts of directed at protection of the Hector’s white-flippered penguins are frequently lubricating and waste oils. With dolphin (Cephelorhynchus hectori) from caught in nearshore set nets, especially favorable weather conditions and bycatch in set nets. The 4-month set net around Motunau Island (Taylor 2000, p. establishment of triage response, no ban, from November to the end of 69). The number of birds caught is not casualties of the pollution event were February, which also includes Motunau known but there is a history of discovered (Taylor 2000, p. 94). Island, is designed to reduce ‘‘multiple net catches’’ of penguins While New Zealand has a good record entanglements of these dolphins and to around Motunau Island (Ellis et al., of oil spill response, an oil spill in the reduce the risk of entanglement of 1998, p. 87). Restrictions on the use of vicinity of one of the two breeding white-flippered penguins and yellow- set nets in the areas of Banks Peninsula colonies of the white-flippered penguin eyed penguins (NZ DOC 2007, p. 1). Ten and Motunau Island were instituted in which lie closely adjacent to the years ago, in the Action Plan for Seabird 1988 (see discussion under Factor D industrial port of Port Lyttelton, could Conservation, this ban was reported to above), but bans on leaving nets set impact a large portion of the individuals have been widely disregarded (Taylor inshore overnight were reported to be of this subspecies if not immediately 2000, p. 70). That Action Plan states that widely disregarded a decade ago (Ellis contained. Previous spills have been in restriction on the use of set nets near et al. 1998, p. 87). Such impacts interact more remote locations, with more key white-flippered penguin colonies with the more severe threat of predation leeway for longer-term response before may be necessary to protect the species at Banks Island, exacerbating declines oil impacted wildlife. Based on the and recommends an advocacy program there. Reports indicate bycatch impacts occurrence of previous spills around to encourage set net users to adopt are most severe at Motunau Island, New Zealand, the low overall numbers practices that will minimize seabird which is currently predator free. Based of white-flippered penguins, and the bycatch. We have information on the best available information we do location of their only two breeding indicating that white-flippered penguins not have a basis to conclude that rates populations adjacent to Christchurch, a are frequently caught in set nets and no of bycatch will decline in the major South Island port, there is a high current information to indicate whether, foreseeable future, and we have found likelihood that oil spill events, should or to what extent, set net restrictions no current information to indicate that they occur in this area, will impact have reduced take at either Banks net restrictions have reduced take. white-flippered penguins. Therefore, we Peninsula or Motunau Island. Therefore, we find that bycatch of the find that oil spills are a threat to the

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white-flippered penguin in the will change in the future, nor that the Documented oil spills have occurred foreseeable future. effects of current threats acting on this in the vicinity of the South Island of We find that fisheries bycatch and the subspecies will be ameliorated in the New Zealand in the last decade. While potential for oil spills are threats to the foreseeable future. such events are rare, future events have white-flippered penguin throughout all the potential to impact white-flippered of its range now and in the foreseeable White-Flippered Penguin Finding penguins. A spill event near the city of future. Predation by introduced mammalian Christchurch and the adjacent Banks Foreseeable Future predators is the most significant factor Peninsula, which was not immediately threatening white-flippered penguin contained, would be very likely to The term ‘‘threatened species’’ means within the species’ breeding range. impact either, or both, of the two any species (or subspecies or, for Predation by introduced species has breeding sites of the white-flippered vertebrates, distinct population contributed to the historical decline of penguin in a very short time, affecting segments) that is likely to become an this subspecies since the late 1800s and up to 65 percent of the population at endangered species within the is reducing numbers at the current time. one time. While New Zealand oil spill foreseeable future throughout all or a In addition to reducing numbers in response and contingency plans have significant portion of its range. The Act existing colonies, the presence of been shown to be effective in previous does not define the term ‘‘foreseeable predators has been documented as a events, the location of the only two future.’’ For the purpose of this barrier to the dispersal of breeding birds breeding areas of this subspecies near proposed rule, we define the and the establishment of new colonies, industrial areas and marine transport ‘‘foreseeable future’’ to be the extent to perhaps indicating larger declines are to routes increase the likelihood that spill which, given the amount and substance be expected. New Zealand laws require events will impact the white-flippered of available data, we can anticipate protection of this native subspecies. penguin. events or effects, or reliably extrapolate Anti-predator efforts have not stopped Major reductions in the numbers of threat trends, such that we reasonably declines of white-flippered penguins at nests in individual colonies and the loss believe that reliable predictions can be Banks Peninsula, although eradication of colonies indicate the population of made concerning the future as it relates of predators has been achieved at white-flippered penguin at Banks to the status of the species at issue. Motunau Island. Removal of introduced Peninsula is declining as the threat of In considering the foreseeable future predation impacts this subspecies. The as it relates to the status of the white- mammalian predators on the mainland Banks Peninsula is an extremely subspecies has a low population size flippered penguin, we considered the (10,460 individuals) with breeding threats acting on the subspecies, as well difficult, if not impossible, task. Trapping and physical protection of a populations concentrated solely in two as population trends. We considered the highly localized breeding areas. Bycatch historical data to identify any relevant few local breeding groups through fencing have proven locally successful from fisheries activities is an ongoing existing trends that might allow for threat to members of this subspecies but these efforts are not widespread. reliable prediction of the future (in the breeding at both Motunau Island and The Banks Peninsula with 186 mi (300 form of extrapolating the trends). the Banks Peninsula. For both breeding km) of coastline and 68 white-flippered With respect to the white-flippered areas, which are close to an industrial penguin colonies, is a very large area to penguin, the available data indicate that port and shipping lanes, oil spills are a control and predation impacts will the historic decline in penguin numbers threat to the white-flippered penguin in continue. The threat of reinvasion is clearly continuing based on the the foreseeable future. Based on the best remains, both at Motunau Island and in current evidence of predation by available scientific and commercial areas of the Banks Peninsula where introduced species in existing recently information, we find that the white- predator control has been implemented surveyed colonies at Banks Island. flippered penguin is likely to become in Given that existing programs have failed (Taylor 2000, p. 70; Challies and danger of extinction within the to eliminate introduced predators and Burleigh 2004, p. 5). We find that foreseeable future throughout all of its that these predators appear to be predation is a threat to the white- range. spreading, we believe their impact on flippered penguin throughout all of its the white-flippered penguin will range. Significant Portion of the Range continue in the future. There is no The white-flippered penguin is also Analysis information to suggest that the current impacted by threats in the marine Having determined that the white- effects of bycatch will be reduced in the environment. While set-net bans have flippered penguin is likely to become in foreseeable future, nor that regulatory been in place since the 1980s to reduce danger of extinction within the mechanisms will become sufficient to take of white-flippered penguins and foreseeable future throughout all of its address or ameliorate this threat to the other species, bycatch in coastal gill-net range, we also considered whether there subspecies. Based on the occurrence of fisheries is known to result in mortality are any significant portions of its range previous oil spills around New Zealand to white-flippered penguins foraging where the species is currently in danger and the location of the only two from breeding areas. Although we do of extinction. See our analysis for the breeding populations of white-flippered not have quantitative data on the extent yellow-eyed penguin for how we make penguins adjacent to Christchurch, a of bycatch, the best available this determination. major South Island port, we find that oil information indicates that such impacts White-flippered penguins breed in spills will likely occur in the future. are an underlying threat which interacts two areas, one on the shores of the Furthermore, because of the low overall with the more severe threat of predation Banks Peninsula south of Christchurch numbers of white-flippered penguins, at Banks Island and which especially New Zealand, the other at Motunau there is a high likelihood that oil spill impacts populations at Motunau Island. Island about 62 mi (100km) north. It events, should they occur in this area, Based on the best available scientific appears that colonization of any will impact white-flippered penguins. and commercial information, we possible intermediate breeding range is Based on our analysis of the best conclude that bycatch is a threat to the precluded by predation (Challies and available information, we have no white-flippered penguin throughout all Burleigh 2004, p. 5). The Banks Island reason to believe that population trends of its range. colony is larger, with about 2,112

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breeding pairs, and Motunau Island has part of the North Island (Ellis et al. a long-term decline may have occurred about 1,635 breeding pairs. Threats in 1998, p. 69). The Fiordland crested on Solander Island (Cooper et al. 1986, the marine environment, particularly penguin breeds in colonies situated in p. 89). Historical data report thousands fisheries bycatch have similar impact on inaccessible, dense, temperate rainforest of individuals in locations where the two areas and, given the proximity along shores and rocky coastlines, and numbers in current colonies are 100 or of each colony to the port of sometimes in sandy bays. It feeds on fewer (Ellis et al. 1998, p. 69). The Christchurch, we conclude that oil fish, squid, octopus, and krill (BirdLife species account in the New Zealand spills are a threat in both areas. International 2007, p. 3). Action Plan for Seabird Conservation Predation by introduced predators is Outside the breeding season, the birds states that ‘‘the population status of the documented at Banks Peninsula, and have been sighted around the North and species throughout its breeding range is introduction of predators is a potential South Islands and south to the sub- still unknown and will require long- future threat at Motunau Island, where Antarctic islands, and the species is a term monitoring to assess changes’’ population numbers are stable. This regular vagrant to southeastern Australia (Taylor 2000, p. 58). leads us to consider whether the Banks (Simpson 2007, p. 2; Taylor 2000, p. 58). The IUCN Red List (BirdLife Peninsula portion of the range, where Houston (2007a, p. 2) of the New International 2007, p. 1) classifies this population declines are ongoing, may be Zealand DOC comments that the species as ‘Vulnerable’ because it has a in danger of extinction. While the threat appearance of vagrants in other small population assumed to have been of introduced predators is greater at the locations is not necessarily indicative of undergoing a rapid reduction of at least Banks Peninsula, a combination of local the normal foraging range of Fiordland 30 percent over the last 29 years. This management protection of some crested penguins; he also states that the classification is based on trend data colonies and the existence of non-breeding range of this species is from a few sites, for example at Open inaccessible refugia from predators for unknown. Bay Island there was a 33 percent some small colonies on the outer coast A five-stage survey effort, conducted decrease for the time period from 1988– and offshore rocks and islands leads us from 1990–1995, documented all the 1995. The Fiordland crested penguin is to conclude that there is not substantial major nesting areas of Fiordland crested listed as Category B (second priority) on information to conclude the species in penguin throughout its known current the Molloy and Davis threat categories this portion of the range may currently range (McLean and Russ 1991, pp. 183– employed by the New Zealand DOC be in danger of extinction. We 190; Russ et al. 1992, pp. 113–118; (Taylor 2000, p. 33) and placed in the determine that the Motunau Island and McLean et al. 1993, pp. 85–94; second tier in New Zealand’s Action Banks Island portions of the range do Studholme et al. 1994, pp. 133–143; Plan for Seabird Conservation. The not satisfy the two initial tests because McLean et al. 1997, pp. 37–47). In these species is listed as ‘acutely threatened— there is not substantial information to studies researchers systematically nationally endangered’ on the New surveyed the entire length of the range conclude that the species in those Zealand Threat Classification System of this species, working their way along portions may currently be in danger of list (Hitchmough et al. 20077, p. 38; the coast on foot to identify and count extinction. Molloy et al. 2003, pp. 13–23). Under As a result, while the best available individual nests, and conducting small this classification system, which is non- boat surveys from a few meters offshore scientific and commercial data allows regulatory, species experts assess the to identify areas to survey on foot. The us to make a determination as to the placement of species into threat coastline was also scanned from a rangewide status of the white-flippered categories according to both status support ship, to identify areas to survey penguin, we have determined that there criteria and threat criteria. Relevant to (McLean et al. 1993, p. 87). A final are no significant portions of the range the Fiordland crested penguin count of nests for the species resulted in in which the species is currently in evaluation are its low population size an estimate of between 2,500 and 3,000 danger of extinction. and reported declines of greater or equal nests annually (McLean et al. 1997, p. Therefore, we propose to list the to 60 percent in the total population in 45) and a corresponding number of white-flippered penguin as threatened the last 100 years (Molloy et al. 2003, p. 2,500 to 3,000 breeding pairs. The throughout all of its range under the 20). staging of this survey effort reflects the Act. dispersed distribution of small colonies Summary of Factors Affecting the Fiordland Crested Penguin (Eudyptes of this species along the convoluted and Fiordland Crested Penguin inaccessible mainland and island pachyrhynchus) Factor A. The Present or Threatened coastlines of the southwest portion of Background Destruction, Modification, or the South Island of New Zealand. The Fiordland crested penguin, also Long-term and current data on overall Curtailment of the Fiordland Crested known by its Maori name, tawaki, is changes in abundance are lacking. The Penguin’s Habitat or Range endemic to the South Island of New June 2007 Fiordland National Park The Fiordland crested penguin has a Zealand and adjacent offshore islands Management Plan (New Zealand patchy breeding distribution from southwards from Bruce Bay. The species Department of Conservation (NZ DOC) Jackson Bay on the west coast of the also nests on Solander Island (0.3 square 2007, p. 53) observed that Fiordland South Island of New Zealand southward miles (mi2) (0.7 square kilometers crested penguin numbers appear to be to the southwest tip of New Zealand and (km2))), Codfish Island (5 mi2 (14 km2)), stable, and reported on the nesting offshore islands, including Stewart and islands off Stewart Island at the success of breeding pairs at island (88 Island. A major portion of this range is south end of the South Island (Taylor percent) versus mainland (50 percent) encompassed by the Fiordland National 2000, p. 58). Major portions of the range sites. The Management Plan raises Park on the South Island and Rakiura are in Fiordland National Park (4,825 uncertainty as to whether 50 percent National Park on Stewart and adjacent mi2 (12,500 km2)) and Rakiura National nesting success will be sufficient to islands at the southern tip of New Park (63 mi2 (163 km2)) on Stewart and maintain the mainland population long Zealand. The majority of the breeding adjacent islands. Historically, there are term. Populations on Open Bay Island range of the Fiordland crested penguin reports of breeding north to the Cook decreased by 33 percent between 1988 lies within national parks and is Straits and perhaps on the southernmost and 1995 (Ellis et al. 1998, p. 70), and currently protected from destruction

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and modification. The only reported control visitor access to mainland predators, but they are not common in instance of terrestrial habitat penguin colonies and accessible sites nesting areas. Recent observations since modification comes from the presence should be protected as Wildlife Refuges the development of the Action Plan of deer (no species name provided) in (Taylor 2000, p. 60). It is not clear, (Taylor 2000, p. 58), which originally some colonies that may trample nests or based on the information available discounted the impact of the introduced open up habitat for predators (Taylor whether such measures have been possum (Trichosurus vulpecula), 2000, p. 58). implemented. Similarly, research indicate that this species has now We find that the present destruction, activities may disturb breeding birds. colonized the mainland range of the modification, or curtailment of the Houston (2007a, p. 1) reported that Fiordland crested penguin in South terrestrial habitat or range of the monitoring of breeding success at Westland and Fiordland. Initially Fiordland crested penguin is not a Jackson’s Head has been abandoned due thought to be vegetarians, it is now threat to the species in any portion of to concerns of adverse effects of the documented that possums eat birds, its range. research on breeding success and eggs, and chicks and also compete for The marine foraging range of the recruitment. There is no evidence of use burrows with native species. It is not yet Fiordland crested penguin is poorly of the species for other commercial, known if they compete for burrows or documented. Recent observations on the recreational, scientific or educational eat the eggs of Fiordland crested foraging behavior of the species around purposes. penguins, as they do other native Stewart and Codfish Islands found birds Therefore, we find that the present species, but this is thought to be likely foraging very close to shore and in overutilization for commercial, (Houston 2007b, p. 1). Domestic dogs shallow water (Houston 2007a, p. 2), recreational, scientific, or educational are reported to kill adult penguins and indicating the species may not be a purposes, particularly human disturb colonies near human habitation pelagic feeder. The species is a vagrant disturbance, is a threat to the survival of (Taylor 2000, p. 58). to more northerly areas of New Zealand the Fiordland crested penguin Weka, which are omnivorous, and to southeastern Australia, but that throughout all of its range now and in flightless rails about the size of chickens is not considered indicative of its the foreseeable future. and native to other regions of New normal foraging range (Houston 2007a, Zealand, have been widely introduced Factor C. Disease or Predation p. 2). onto offshore islands of New Zealand. ‘‘Prey shortage due to sea temperature Reports from 1976 documented that At Open Bay Islands and Solander change’’ while foraging at sea has been Fiordland crested penguin chicks have Islands, this alien species has been cited as a threat (Ellis et al. 2007, p. 6) been infected by the sandfly-borne observed to take Fiordland crested and changes in prey distribution as a protozoan blood parasite penguin eggs and chicks. At Open Bay result of slight warming of sea (Leucocytozoon tawaki) (Taylor 2000, p. Island colonies, weka caused 38 percent temperatures have been implicated for 59) (see discussion under Factor C for of egg mortality observed and 20 percent declines of southern rockhopper the yellow-eyed penguins). Diseases of chick mortality (St. Clair and St. Clair penguins at Campbell Island and such as avian cholera, which has caused 1992, p. 61). The decline in numbers of mentioned as a possible threat for the deaths of southern rockhopper Fiordland crested penguin on the Fiordland crested penguins (Taylor penguin adults and chicks at Campbell Solander Islands from ‘‘plentiful’’ to a 2000, p. 59). However, the Action Plan Islands, are inferred to be a potential few dozen since 1948 has also been for Seabird Conservation in New problem in Fiordland crested penguin attributed to egg predation by weka Zealand concluded that the effects of colonies (Taylor 2000, p. 59). However, (Cooper et al. 1986, p. 89). Among the oceanic changes or marine perturbations with no significant disease outbreaks future management actions identified as such as El Nin˜ o events on the Fiordland reported, the best available information needed in New Zealand’s Action Plan crested penguin are unknown (Taylor leads us to conclude that disease is not for Seabird Conservation are weka 2000, p. 59) and identified the need for a threat to this species. eradication from Solander Island and future research on distribution and Predation from introduced mammals addressing the problem of weka movements of this species in the marine and birds is a threat to the Fiordland predation at Open Bay Islands (Taylor environment (Taylor 2000, p. 61). crested penguin (Taylor 2000, p. 58; 2000, p. 60). Based on this analysis, we find that Ellis et al. 1998, p. 70). Comments Predator control programs have been the present or future destruction, received from the New Zealand DOC undertaken on only a few islands in a modification, or curtailment of the link historical declines of Fiordland limited portion of the Fiordland crested terrestrial and marine habitat or range is crested penguins to the time of arrival penguin’s range and are not practicable not a threat to the Fiordland crested of mammalian predators, particularly in the inaccessible mainland South penguin in any portion of its range. stoats, to the area (Houston 2007a, p. 1). Island strongholds of the species (Taylor Only Codfish Island, where 144 nests 2000, p. 59). Factor B. Overutilization for have been observed, is fully protected Predation by introduced mammalian Commercial, Recreational, Scientific, or from introduced mammalian and avian species is the primary threat facing the Educational Purposes predators (Studholme et al. 1994, p. Fiordland crested penguin on the Human disturbance of colonies is rare 142). This island lies closely adjacent to mainland South Island of New Zealand. because the birds generally nest in Stewart Island so the future possibility At breeding islands free of mammalian inaccessible sites. However, in some of predator reintroduction cannot be predators, e.g., Open Bay Islands and accessible areas, such as in the northern discounted. Mustelids, especially stoats, Solander Island, an introduced bird, the portion of the range at South Westland, are reported to take eggs and chicks in weka, is a predator on Fiordland large concentrations of nests occur in mainland colonies and may penguin eggs and chicks. Only Codfish areas accessible to people and dogs. In occasionally attack adult penguins Island is fully protected from addition, nature tourism may disturb (Taylor 2000, p. 58). The Norway rat, introduced mammalian and avian breeding (McLean et al. 1997, p. 46; ship rat (Rattus rattus), and Pacific rat predators. Therefore, we find that Taylor 2000, p. 58). The Action Plan for (Rattus exulans) may be predators, but predation by introduced species is not Seabird Conservation in New Zealand there is no direct evidence of it. Feral a threat to the Fiordland crested stated that guidelines are needed to cats and pigs are also potential penguin on Codfish Island, but is a

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threat to this species in other portions have been implemented that reduce the limiting or eradicating predators on of its range now and in the foreseeable threats to the Fiordland crested larger islands and in inaccessible future. penguin. mainland South Island habitats. The Fiordland crested penguin has Furthermore, we are not able to evaluate Factor D. Inadequacy of Existing been placed in the group of birds ranked whether efforts to reduce the threats of Regulatory Mechanisms as second tier threat status in New human disturbance discussed in Factor All but seven seabird species in New Zealand’s Action Plan for Seabird B have been implemented or achieved Zealand, including the Fiordland Conservation on the basis of its being results. crested penguin, are protected under listed as ‘Vulnerable’ by IUCN Red List On the basis of this information, we New Zealand’s Wildlife Act of 1953, Criteria and as Category B (second find that inadequacy of existing which gives absolute protection to priority) on the Molloy and Davis threat regulatory mechanisms is a threat to the wildlife throughout New Zealand and categories employed by the New Fiordland crested penguin throughout its surrounding marine economic zone. Zealand DOC (Taylor 2000, p. 33). The all of its range now and in the No one may kill or have in their Action Plan, while not a legally binding foreseeable future. possession any living or dead wildlife document, outlines actions and Factor E. Other Natural or Manmade unless they have appropriate authority. priorities intended to define the future Factors Affecting the Continued The majority of the range of the direction of seabird work in New Existence of the Species Fiordland crested penguin is within the Zealand. High-priority future Fiordland National Park (which management actions identified are Commercial fishing in much of the includes Solander Island) and adjacent eradication of weka from Big Solander species’ range is a comparatively recent parks, including Rakiura National Park. Island and development of a development and is considered unlikely Fiordland National Park covers 15 management plan for the Open Bay to have played a significant role in percent of public conservation land in Islands to address the problem of weka historic declines (Houston 2007a, p. 1). New Zealand. Under section 4 of the predation on Fiordland crested New Zealand’s Seabird Action Plan National Parks Act of 1980 and Park penguins and other species. We do not noted that Fiordland crested penguins bylaws, ‘‘the native plants and animals have information to allow us to evaluate could potentially be caught in set nets of the parks shall as far as possible be whether any of these proposed actions near breeding colonies and that trawl preserved and the introduced plants and and priorities have been carried out and, nets are also a potential risk. animals shall as far as possible be therefore, have not relied on this Competition with squid fisheries is also eradicated’’ (NZ DOC 2007, p. 24). The information in our threat analysis. noted as a potential threat (Taylor 2000, June 2007 Fiordland National Park New Zealand has in place The New p. 59; Ellis et al. 1998, p. 70; Ellis et al. Management Plan (NZ DOC 2007, pp. 1– Zealand Marine Oil Spill Response 2007, p. 7). The 1998 CAMP 4) contains, in its section on Strategy, which provides the overall recommended research on foraging Preservation of Indigenous Species and framework to mount a response to ecology to identify potential Habitats, a variety of objectives aimed at marine oil spills that occur within New competition with commercial fisheries maintaining biodiversity by preventing Zealand’s area of responsibility. The and effects of climatic variation (Ellis et the further loss of indigenous species aim of the strategy is to minimize the al. 1998, pp. 70–71), but we are not from areas where they were previously effects of oil on the environment and aware of the results of any such studies. known to exist. The Fiordland crested people’s safety and health. The National The New Zealand DOC (Houston 2007a, penguin is specifically referenced in the Oil Spill Contingency Plan promotes a p. 1), in its comments on this petition, audit of biodiversity values to be planned and nationally coordinated noted that the ‘‘assessment of threats preserved in the Park (NZ DOC 2007, p. response to any marine oil spill that is overstates the threat from fisheries’’ to 53). In addition, the Fiordland Marine beyond the capability of a local regional the Fiordland crested penguin. The Management Act of 2005 establishes the council or outside the region of any distribution and behavior of this species Fiordland Marine area and 8 marine local council (Maritime New Zealand may reduce the potential impact of reserves within that area, which 2007, p. 1). As discussed below under bycatch. The Fiordland crested penguin encompasses more than 2.18 million ac Factor E, rapid containment of spills in is distributed widely along the highly (882,000 ha) extending from the remote areas and effective triage convoluted, sparsely populated, and northern boundary of the Park to the response under this plan has shown legally protected South Island coastline southern boundary (excluding Solander these to be effective regulatory for a linear distance of over 155 mi (250 Island) (NZ DOC 2007, p. 29). The mechanisms (New Zealand Wildlife km), as well as along the coasts of species also inhabits Rakiura National Health Center 2007, p. 2; Taylor 2000, several offshore islands. Significant Park, which encompasses Stewart Island p. 94). feeding concentrations of the species, and Whenua Hou (Codfish Island) and Major portions of the coastal and which might be susceptible to bycatch, also falls under the National Parks Act marine habitat of the Fiordland crested have not been described. Given the of 1980 and Park bylaws. penguin are protected under a series of absence of documentation of actual The Fiordland National Park is laws, and the species itself is covered impacts of fisheries bycatch on the encompassed in the Te Wahipounamu— under the New Zealand Wildlife Act. Fiordland crested penguin, we conclude South West New Zealand World The National Parks Act specifically calls that this is a not threat to the species in Heritage Area. World Heritage areas are for controlling and eradicating any portion of its range. designated under the World Heritage introduced species. While there has We have examined the possibility that Convention because of their outstanding been limited success in controlling oil and chemical spills may impact universal value (NZ DOC 2007, p. 44). some predators of Fiordland crested Fiordland crested penguins. Such spills, Such designation does not confer penguins at isolated island habitats should they occur and not be effectively additional protection beyond that comprising small portions of the overall managed, can have direct effects on provided by national laws. range, the comprehensive legal marine seabirds such as the Fiordland Despite these designations and the protection of this species has not crested penguin. The range of the possibility of future efforts, we have no surmounted the logistical and resource Fiordland crested penguin, on the information to indicate that measures constraints which stand in the way of southwest coast of the South Island of

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New Zealand is remote from shipping does not define the term ‘‘foreseeable Open Bay and Solander Islands have activity and away from any major future.’’ For the purpose of this been documented as resulting from human population centers, and the proposed rule, we define the weka predation. While the Fiordland consequent risk of oil or chemical spills ‘‘foreseeable future’’ to be the extent to crested penguin is a remote and hard-to- is low. The Stewart Islands populations which, given the amount and substance study species, the impact of predators at the southern end of New Zealand are of available data, we can anticipate on naı¨ve endemic penguins, which have in closer proximity to vessel traffic and events or effects, or reliably extrapolate never before experienced mammalian human industrial activities which may threat trends, such that we reasonably predation, is well documented for increase the possibility of oil or believe that reliable predictions can be similar species, such as the yellow-eyed chemical spill impacts. Two spills have made concerning the future as it relates penguin (Darby and Seddon 1990, p. 45) been recorded in this overall region. In to the status of the species at issue. and the white-flippered penguin March 2000, the fishing vessel Seafresh In considering the foreseeable future (Challies and Burleigh 2004, p. 4) that 1 sank in Hanson Bay on the east coast as it relates to the status of the are more accessible to scientific of Chatham Island and released 66 T (60 Fiordland crested penguin, we observation. t) of diesel fuel. Rapid containment of considered the threats acting on the New Zealand laws and the bylaws of the oil at this remote location prevented species, as well as population trends. the national parks, which encompass any wildlife casualties (New Zealand We considered the historical data to the majority of the range of the Wildlife Health Center 2007, p. 2). The identify any relevant existing trends that Fiordland crested penguin, institute same source reports that in 1998 the might allow for reliable prediction of provisions to ‘‘as far as possible’’ protect fishing vessel Don Wong 529 ran the future (in the form of extrapolating this species and to seek eradication of aground at Breaksea Islets off Stewart the trends). nonnative invasive species. Island. Approximately 331 T (300 t) of With respect to the Fiordland crested Unfortunately, while complete marine diesel was spilled along with penguin, the available data indicate that eradication of predators, such as weka smaller amounts of lubricating and historical declines have been linked to in isolated island habitats (e.g., Solander waste oils. With favorable weather the invasion by introduced predators to Island), may be possible, removal of the conditions and establishment of triage the South Island of New Zealand, and introduced mammalian predators now response, no casualties of the pollution recently documented declines have known to be widespread in mainland event were discovered (Taylor 2000, p. been attributed to introduced predators. Fiordland National Park is an extremely 94). There is no doubt that an oil spill Given the remote and widely dispersed difficult, if not impossible, task. near a breeding colony could have a range of the Fiordland crested penguin, Similarly, physical protection of some major effect on this species (Taylor especially on the mainland of the South breeding groups from predation, as has 2000, p. 94). However, based on the Island, significant anti-predator efforts been done for species such as the remote distribution of Fiordland are largely impractical for this species, yellow-eyed and white-flippered penguins around the mainland South and we are unaware of any time-bound penguins, is impractical for the Island, and offshore islands at the plan to implement anti-predator Fiordland crested penguin. For other southern tip of the South Island, the low protection for Fiordland crested penguin species located in more number of previous incidents around penguins or of any significant efforts to accessible and more restricted ranges, New Zealand, and the fact that each was stem ongoing rates of predation. the task of predator control has been effectively contained under the New Therefore, we find that predation by undertaken at levels of effort meaningful Zealand Marine Oil Spill Response introduced species is reasonably likely to protection of those species. For this Strategy and resulted in no mortality or to continue in the foreseeable future. remote and widely dispersed species, evidence of impacts on the population, The threat of human disturbance could predator control has only been we find that oil and chemical spills are increase as tourism activities become undertaken on a limited basis, and we not a threat to the Fiordland crested more widespread in the region, and we have no reason to believe this threat to penguin in any portion of its range. have no information that indicates this the Fiordland crested penguin will be In summary, while fisheries bycatch threat will be alleviated for the ameliorated in the foreseeable future. has been suggested as a potential source Fiordland crested penguin in the The threat of human disturbance is of mortality to the Fiordland crested foreseeable future. present in those areas of the range most accessible to human habitation, but penguin, the best available information Fiordland Penguin Finding leads us to conclude that this is not a could increase as tourism activities threat to this species. There is a low- The primary documented threat to the become more widespread in the region. level potential for oil spill events to Fiordland crested penguin is predation While efforts to control this threat have impact this species, but the wide by introduced mammalian and avian been undertaken, we have no dispersal of this species along predators within the species’ breeding information which allows us to inaccessible and protected coastlines range. We are only aware of one small conclude this threat will be alleviated lead us to conclude that this is not a breeding location that is known to be for the Fiordland crested penguin in the threat to the Fiordland crested penguin. predator free. Even though this species foreseeable future. Therefore, we find that other natural or is poorly known, an exhaustive multi- The overall population of the manmade factors are not a threat to the year survey effort documented current Fiordland crested penguin is small species in any portion of its range. low population numbers. The impact of (2,500–3,000 pairs) and reported to be predators is evidenced by the major declining (Ellis et al. 2007, p. 6). The Foreseeable Future historical decline of the Fiordland ongoing pressure of predation by The term ‘‘threatened species’’ means crested penguin during the period of introduced mammalian and avian any species (or subspecies or, for invasion by these predators to the South species on this endemic species over the vertebrates, distinct population Island of New Zealand. Historical data next few decades, with little possibility segments) that is likely to become an from about 1890 cites thousands of of significant anti-predator intervention, endangered species within the Fiordland crested penguins in areas and the potential for human disturbance foreseeable future throughout all or a where current surveys find colonies of to impact breeding populations, leads us significant portion of its range. The Act only 100 or fewer. Recent declines at to find that the Fiordland crested

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penguin is likely to become in danger of Humboldt Penguin (Spheniscus impacted are anchovy and sardine extinction within the foreseeable future humboldti) populations, which comprise the major throughout all of its range. Background diet of Humboldt penguins. During El Nin˜ o events, seabirds, fish, and marine Significant Portion of the Range The Humboldt penguin is endemic to mammals experience reduced survival Analysis the west coast of South America from and reproductive success, and ° ′ ″ Having determined that the Fiordland Foca Island (5 12 0 S) in northern Peru population crashes (Hays 1986, p. 170). crested penguin is likely to become in to the Pinihuil Islands near Chiloe, Given the north-south distribution of danger of extinction within the Chile (42°S) (Araya et al. 2000, p. 1). It the Humboldt penguin along the foreseeable future (threatened) is a congener of the African penguin and Peruvian and Chilean coasts, throughout all of its range, we must next has similar life history and ecological researchers have looked for variation in consider whether there are any traits. breeding and foraging along this significant portions of its range where Humboldt penguins historically bred climatic gradient (Simeone et al. 2002, the species is in danger of extinction. on guano islands off the coast of Peru pp. 43–50). In dry Peruvian breeding See our analysis for the yellow-eyed and Chile (Araya et al. 2000, p.1). Prior areas, where upwelling provides a penguin for how we make this to human mining of guano for fertilizer, constant food source, penguins nest determination. the Humboldt penguin’s primary throughout the year with two well- Fiordland crested penguins breed in nesting habitat was in burrows, defined peaks in breeding in the autumn widely dispersed small colonies along tunneled into the deep guano substrate and spring. Adults remain near the the convoluted and inaccessible on offshore islands. While the guano is colony all year. Further south, in southwest coast of the South Island of produced primarily by three other northern and north-central Chile, the New Zealand and adjacent offshore species (the Guanay cormorant birds follow the same pattern, despite islands. The Fiordland National Park (Phalacrocorax bouganvillii), the stronger seasonal differences in weather Management Plan reported that nesting Peruvian booby (Sula variegate), and (Simeone et al. 2002, pp. 48–49). They success of breeding pairs at island sites Peruvian pelican (Pelecanus thagus)), also attempt to breed twice a year, but was greater than at mainland sites, 88 Humboldt penguins depended on these the autumn breeding event is regularly and 55 percent, respectively. This led us burrows for shelter from the heat and disrupted by the rains more typical at to consider whether the threats in the from predators. With the intensive that latitude, and there is high mainland portion of the range may be in harvest of guano over the last century reproductive failure. Adults in the danger of extinction. In our previous and a half in both countries, Humboldt southern extent of the range (south- five-factor analyses, we found that penguins are forced to nest out in the central Chile) leave the colonies in threats from human disturbance and open or seek shelter in caves or under winter, presumably after abandoning inadequacy of regulatory mechanisms vegetation (Paredes and Zavalga 2001, nesting efforts (Simeone et al. 2002, p. have similar impacts on both island and pp. 199–205). 47). Peruvian and northern Chilean mainland portions of the range. The The distribution of the Humboldt colonies are only impacted by rains and primary threat to the Fiordland crested penguin is very closely associated with flooding during El Nin˜ o years, and penguin is predation by introduced the Humboldt (Peruvian) current. The during those years, nesting attempts are birds on islands and introduced upwelling of cold, highly productive reduced as food supplies shift and mammals on the mainland. While the waters off the coast of Peru provides a adults forage farther afield (Culik et al. eradication of predators, such as weka, continuous food source to vast schools 2000, p. 2317). in isolated island habitats may be of fish and large seabird populations Similar to the African penguin, the possible, removal of the widespread (Hays 1986, p. 170). In the Chilean distribution of colonies within the introduced mammalian predators on the system to the south, upwelling is lighter breeding range of the Humboldt penguin mainland may be extremely difficult, if and occurs more seasonally compared to in Peru has shifted south in recent not impossible. While the threat of Peru (Simeone et al. 2002, p. 44). In all years. This shift may be in response to introduced predators is greater on the regions, Humboldt penguins feed a number of factors: (1) El Nin˜ o events mainland, the overall population is primarily on schooling fish such as the in which prey distribution has been buffered by the existence of some anchovy (Engraulis ringens), shown to move to the south (Culik et al. colonies on small islands just offshore Auracanian herring (Strangomera 2000, p. 2311); (2) increasing human of the mainland portions of the range bentincki), silversides (Odontesthes pressure in central coastal areas; (3) and at Codfish Island which are free of regia), garfish (Scomberesox saurus) long-term changes in prey distribution predators. We find that the mainland (Herling et al. 2005, p. 21), and Pacific (Paredes et al. 2003, p. 135); or (4) portions of the range do not satisfy the sardine (Simeone et al. 2002, p. 47). overall increases in sea surface two initial tests because there is not Depending on the location and the year, temperature. substantial information to conclude that the proportion of each of these species The Humboldt penguin has decreased the species in those portions may in the diet varies. historically from more than a million currently be in danger of extinction. Periodic failure of the upwelling and birds in the 19th century to 41,000 to As a result, while the best scientific its impact on schooling fish and 47,000 individual birds today (Ellis et and commercial data available allows us fisheries off Peru and Ecuador were the al. 2007, p. 7). Nineteenth century to make a determination as to the first recorded and signature phenomena reports indicate there were more than a rangewide status of the Fiordland of El Nin˜ o Southern Oscillation events million birds in the Humboldt Current crested penguin, we have determined (ENSO). El Nin˜ o events occur irregularly area. By 1936, there was already that there are no significant portions of every 2–7 years (National Oceanic and evidence of major population declines the range in which the species is Atmospheric Administration (NOAA) and of breeding colonies made currently in danger of extinction. 2007, p. 4). This periodic warming of precarious by the harvest of guano from Therefore, we propose to list the sea surface temperatures and over 100 Peruvian islands (Araya et al. Fiordland crested penguin as threatened consequent upwelling failure affects 2000, p. 1). throughout all of its range under the primary productivity and the entire food Estimates of the population in Peru Act. web of the coastal ecosystem. Especially have fluctuated in recent history, with

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3,500 to 7,000 in 1981, with a the basis of 30 to 49 percent declines to more precarious nest sites (Ellis et al. subsequent reported decrease to 2,100 to over the past 3 generations and 1998, p. 97). 3,000 individuals after the 1982–83 El predicted over 3 generations in the Paredes and Zavalga (2001, pp. 199– Nin˜ o event. In 1996, there were reported future. 205) investigated the importance of to be 5,500 individuals, and after the guano as a nesting substrate and found Summary of Factors Affecting the strong 1997–98 El Nin˜ o event, fewer that Humboldt penguins at Punta San than 5,000. Population surveys in the Humboldt Penguin Juan, where guano harvest has ceased, southern portion of the range in Peru in Factor A. The Present or Threatened preferred to nest in high-elevation sites 2006 found 41 percent more penguins Destruction, Modification, or where there was adequate guano than in 2004, increasing estimates for Curtailment of Humboldt Penguin’s available for burrow excavation. As that area from 3,101 individuals to 4,390 Habitat or Range guano depth increased in the absence of and supporting an overall population harvest, the number of penguins nesting estimate for Peru of 5,000 individuals The habitat of the Humboldt penguin in burrows increased. Penguins using (Instituto Nacional de Recursos consists of terrestrial breeding and burrows on cliff tops had higher Naturales (INRENA) 2007, p. 1; IMARPE molting sites and the marine breeding success than penguins 2007, p. 1). environment, which serves as a foraging breeding in the open, illustrating the In 1995–96, it was estimated there range year-round. impact of loss of guano substrate on the were 7,500 breeding Humboldt Modification of their terrestrial survival of Humboldt penguin penguins in Chile (Ellis et al. 1998, p. breeding habitat is a continuing threat to populations. 99; Luna-Jorguera et al. 2000, p. 508). Humboldt penguins. Humboldt penguin Guano harvesting continues on This estimate was significantly revised breeding islands were, and continue to Peruvian points and islands under following surveys conducted in 2002 be, a source of guano for the fertilizer government control. The fisheries and 2003 (Mattern et al. 2004, p. 373) industry and have been exploited since agency, Instituto del Mar del Peru at Isla Chanaral, one of the most 1840 in both Peru and Chile. From 1840 (IMARPE), is working with the important breeding islands for the to 1880, Peru exported an estimated parastatal guano extraction company, Humboldt penguin. Mattern et al. (2004, 12.7 million T (11.5 t) of guano from its PROABONOS, to limit the impacts of p. 373) counted 22,021 adult penguins, islands (Cushman 2007, p. 1). guano extraction on penguins at certain 3,600 chicks, and 117 juveniles at that Throughout the past century, Peru has colonies, with harvest conducted island in 2003. While larger numbers managed the industry through a variety outside the breeding season and workers (6,000 breeding birds) had been of political and ecological conflicts, restricted from disturbing penguins recorded in the 1980s, counts after 1985 including the devastating impacts of El (IMARPE 2007, p. 2). Two major had never exceeded 2,500 breeding Nin˜ o on populations of guano- colonies at Punta San Juan and birds (Ellis et al. 1998, p. 99). The producing birds and the competition Pchamacamac Island are in guano bird authors speculated that rather than between the fishing industry and the reserves and under the management and representing a sudden population seabird populations that are so valuable protection of the guano extraction increase, the discrepancy is a result of to guano production. After 1915, agency, which has built walls to keep systematic underestimates in eight caretakers of the islands routinely out people and predators (UNEP World Conservation Monitoring Center (UNEP previous counts at Isla Chanaral, which hunted penguins for food even as their WCMC) 2003, p. 9). However, guano were all conducted using a uniform guano nesting substrate was removed; extraction is still listed as a moderate methodology. Just to the south of this resulting in the birds being virtually threat to some island populations study area in the Coquimbo region, eliminated from the guano islands within the Reserva Nacional de Paracas Luna-Jorguera et al. (2000, p. 506) (Cushman 2007, p. 11). Harvest of guano (Lleellish et al. 2006, p. 4) and illegal counted a total of 10,300 penguins in continues on a small scale today and is guano extraction is listed by the on-land and at-sea counts conducted in managed by Proyecto Especial de Peruvian natural resource agency, 1999. That study also produced Promocion del Aprovechamiento de numbers higher than the most recent Instituto Nacional de Recursos Abonos Provenientes de Aves previous census, which had estimated Naturales (INRENA), as one of three (PROABONOS), a small government only 1,050 individuals in the Coquimbo primary threats to the Humboldt company producing fertilizer for organic region (Luna-Jorguera et al. 2000, p. penguin in Peru (INRENA 2007, p. 2). farming (Cushman 2007, p. 24). 508). Other than the overall rangewide The penguin Conservation Assessment figures for the species presented by Ellis Reports from 1936 described and Management Plan (CAMP) (Ellis et et al. (2007, p. 7), there is not a completely denuded guano islands and al. 1998, p. 101) recommended that the comprehensive current estimate of the indicated that by 1936 Humboldt harvest of guano in Peru be regulated in total number of penguins in Chile. The penguin populations had undergone a order to preserve nesting habitat and best available scientific information vast decline throughout the range (Ellis reduce disturbance during the nesting indicates that there are approximately et al. 1998, p. 97). Guano, which was seasons. Guano harvest is reported to 30,000 to 35,000 individuals in the initially many meters deep, was initially have ceased in Chile (UNEP WCMC Chilean population. harvested down to the substrate level. 2003, p. 6). We conclude, on the basis These updated Chilean counts have Then, once the primary guano- of the extent and severity of exploitation led to revision of overall population producing birds had produced another throughout the range of the Humboldt estimates for the species. As recently as ankle-deep layer, it was harvested again. penguin in both countries over the past 2007, BirdLife International (2007, p. 2) The Humboldt penguins, which 170 years, and on the basis of limited reported a total population of 3,000 to formerly burrowed into the abundant ongoing guano extraction in Peru, that 12,000. Based on the new data, Ellis et guano, were deprived of their primary modification of the terrestrial breeding al. (2007, p. 7) report a population of nesting substrate and forced to nest in habitat is a threat to the survival of the 41,000 to 47,000 individuals. the open, where they are more Humboldt penguin throughout its range. The 2007 IUCN Red List (BirdLife susceptible to heat stress and their eggs With respect to modification of the International 2007, p. 1) categorizes the and chicks are more vulnerable to marine habitat of the Humboldt Humboldt penguin as ‘‘Vulnerable’’ on predators, or they were forced to resort penguin, periodic El Nin˜ o events have

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been shown to have significant effects Factor B. Overutilization for accessible island that saw over 10,000 on the marine environment on which Commercial, Recreational, Scientific, or visitors. Better breeding success was Humboldt penguins depend and must Educational Purposes observed at Choros Island, a less be considered the main marine Hunting of Humboldt penguins for accessible island that saw less than perturbation for the Humboldt penguin food and bait and harvesting of their 1,000 visitors. The highest breeding (Ellis et al. 1998, p. 101), impacting eggs have been long established on the success was observed at the remote and penguin colonies in Peru (Hays 1986, p. coasts of Chile and Peru; it is not clear largest Chanaral Island colony, where 169–180; INRENA 2007, p. 1) and Chile how much hunting persists today. At tourist access was negligible. Unlike (Simeone et al. 2002, p. 43). The Pajaros Island in Chile, Humboldt their congeners, the Magellanic strength and duration of El Nin˜ o events penguins are sometimes hunted for penguins (Spheniscus magellanicus), has increased since the 1970s, with the human consumption or for use as bait Humboldt penguins were found to be 1997–98 event the largest on record in the crab fishery. At the Punihuil extremely sensitive to human presence (Trenberth et al. 2007, p. 288). The Islands farther south, they are also and to display little habituation Humboldt Penguin Population and hunted on occasion for use as crab bait potential, suggesting a strong need for Habitat Viability Assessment (Araya et (Simeone et al. 2003, p. 328; Simeone tourism guidelines for this species al. 2000, pp. 7–8) concluded that, even and Schlatter 1998, p. 420). Paredes et (Ellenberg et al. 2006, p. 103). Simeone without El Nin˜ o and other impacts, al. (2003, p. 136) reported that as fishing and Schlatter (1998, p. 420) described documented rates of reproductive occurs more frequently in the proximity nest destruction by unregulated tourists success and survival would cause of penguin rookeries this has attracted at Punihuil Island, a popular tourist declines in the Chilean populations. In fishermen to take penguins for food in destination in southern Chile. Both the the absence of other human impacts, Peru. Cheney (UNEP WCMC 2003, p. 6) attractiveness of the penguins for annual declines from El Nin˜ o events in reported an observation of a fisherman tourism and the potential for increased Chile alone were projected to lead to 2.3 taking 150 penguins to feed a party. In impacts from human disturbance stem from the coincidence of the prime to 4.4 percent annual declines. Peruvian 1995, egg harvest was listed as the tourist season with the Humboldt population data found an overall primary threat to Chilean populations penguin’s spring and summer breeding population decline of 65 percent during (UNEP WCMC 2003, p. 6), but recent season. In Peru, the impact of tourism the 1982–83 El Nin˜ o event (Hays 1986, information does not indicate whether is listed as a minimal to mid-level threat p. 169). While we have not found that practice continues today. Paredes et at the Reserva Nacional de Paracas comparable documentation of the al. (2003, p. 136) also reported that (Lleellish et al. 2006, p. 4). impact of the 1997–98 event in Peru, guano harvesters supplement their In the areas described in the few birds were recorded breeding at meager incomes and diets through literature, tourism has increased rapidly guano bird reserves in 1998 and, at one collecting eggs and chicks, although the and with little regulation in the colony, Punta San Juan, the number of fisheries agency, IMARPE, is working Humboldt National Reserve, has caused breeding individuals appears to have with PROABONOS to restrict workers nest destruction at Punihuil Island in declined by as much as 75 percent from disturbing penguins (IMARPE Chile, and is reported to be a minimal between 1996 and 1999 before 2007, p. 2). On the basis of this to mid-level threat at Reserva Nacional subsequent rebound (Paredes et al. information, we conclude that localized de Paracas in Peru. Because Humboldt 2003, p. 135). This suggests that a intentional harvest may be ongoing. We penguins are extremely sensitive to the similar level of impact from a single El have no basis to evaluate the presence of humans, the species’ Nin˜ o event in the future could reduce effectiveness of reported efforts to breeding success is impacted with the current Peruvian populations from control this harvest. Therefore, we conclude that intentional take is a threat increased levels of tourism, and the 5,000 birds to 1,250 to 1,750 birds. prime tourist season coincides with the Cyclical El Nin˜ o events cause high to the Humboldt penguin throughout all of its range. species’ spring and summer breeding mortality among seabirds, but there is season, we conclude that tourism is a also high selection pressure on It was estimated in 1985 that 9,264 Humboldt penguins had been exported threat to the species in portions of its Humboldt Current seabird populations range where it is unregulated. to increase rapidly in numbers after to several zoos around the world within Other human activities may disturb each event (Ellis et al. 1998, p. 101). a period of 32 years. Exportation of Humboldt penguins from Peru or Chile penguins. For example, fishermen Nonetheless, with strengthening El Nin˜ o is now prohibited (Ellis et al. 1998, p. hunting European rabbits (Oryctolagus events, reduced Humboldt penguin 101) and, as discussed under Factor D, cuniculus) disturbed penguins at Choros population numbers, and the the species is listed in Appendix I of the Island (Simeone et al. 2003, p. 328), but compounding influence of other threat Convention on International Trade in we do not conclude that this activity has factors, such as ongoing competition Endangered Species of Wild Fauna and occurred at a scale that represents a with commercial fisheries for food Flora (CITES). threat to the Humboldt penguin. sources, which are discussed below Tourism has been identified as a We have identified intentional take under Factor E, the resiliency of potential threat to the Humboldt and unregulated tourism as a threat to Humboldt penguins to recover from penguin. Since the 1990 designation of Humboldt penguins. Therefore, we find ˜ cyclical El Nino events is highly likely the Humboldt National Reserve, which that overutilization for commercial, to be reduced from historical times includes the islands of Damas, Choros, recreational, scientific, or educational (Ellis et al. 1998, p. 101). and Chanaral in Chile, tourism has purposes is a threat to the Humboldt On the basis of this analysis, we find increased rapidly but with little penguin throughout all of its range now that the present and threatened regulation (Ellenberg et al. 2006, p. 97). and in the foreseeable future. destruction, modification, or Ellenberg et al. (2006, p. 99) found that Factor C. Disease or Predation curtailment of both its terrestrial and Humboldt penguin breeding success marine habitats is a threat to the varied with levels of tourism at these There is no information to indicate Humboldt penguin throughout all of its three islands. Breeding success was very that disease is a threat to the Humboldt range now and in the foreseeable future. low at Damas Island, the most tourist penguin.

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Simeone et al. (2003, p. 331) reported done to establish particular fishing-free fish species has reduced those species that the presence of rats, rabbits, and zones and there is little progress in in the diet of penguins, and it has been cats has been documented on islands preventing penguins from being caught noted that fisheries extraction has the along the Chilean coast, but their in fishing nets. potential of harming Humboldt impacts on Humboldt penguins are not Majluf et al. (2002, p. 1342) stated, penguins if overfishing occurs (Herling known. In Peru, ‘‘rats were observed at ‘‘There is currently no management of et al. 2005, p. 23). Culik and Luna- Pajaros Island, Chachagua, and Pajaro artesanal [sic] gill-net fisheries in Peru, Jorquera (1997, p. 555) and Hennicke Nido. At Pajaros Islands, rats were except for restrictions on retaining and Culik (2005, p.178), tracking present in large numbers and were cetaceans and penguins. Even these foraging effort of penguins in northern observed to predate on penguin eggs regulations are difficult to enforce in Chile, concluded that even small and chicks’’ (Simeone et al. 2003, p. remote and isolated ports such as San variations in food supply, related to 328). However, on the basis of the best Juan.’’ small changes in sea-surface available information, we do not Both countries have national temperature, led to increased foraging conclude that predation is exerting a authorities and national contingency time. They concluded that Humboldt significant impact on Humboldt plans for oil spill response. Chile has penguins have high energetic costs to penguin populations. Therefore, on the the capability to respond to Tier One obtain food even in non-El Nin˜ o years. basis of the best available information, (small spills with no outside They recommended the establishment we conclude that disease and predation intervention) and Tier Two (larger spills of no-fishing zones, for example, are not a threat to the Humboldt requiring additional outside resources encompassing the foraging range around penguin in any portion of its range. and manpower) oil spill events the breeding area at Pan de Azucar (International Tankers Owners Pollution Island to buffer the species from Factor D. Inadequacy of Existing Federation Limited (ITOPF) 2003, p. 2). possible catastrophic effects of future El Regulatory Mechanisms As of July 2003, Peru was not listed as Nin˜ o events. While commercial fishing The Humboldt penguin is listed as having significant capability to respond in combination with El Nin˜ o events has ‘endangered’ in Peru, the highest threat to oil spill events (ITOPF 2000b, p. 1). contributed to the historic declines of category under Peruvian legislation, and We find that inadequacy of existing Humboldt penguin, and the identified take, capture, transport, trade and regulatory mechanisms, particularly in threat of El Nin˜ o will interact with export are prohibited except for the area of enforcement of existing fisheries extraction during future El scientific or cultural purposes (IMARPE prohibitions related to fishing methods Nin˜ o episodes, on the basis of the best 2007, p. 1; UNEP WCMC 2003, p. 8). and management of fisheries bycatch, is available information we conclude that Most breeding sites are protected by a threat to the Humboldt penguin overfishing or competition for prey from designated areas. The principal breeding throughout all of its range now and in commercial or artesanal fisheries is not colonies are legally protected by the foreseeable future. a threat to the Humboldt penguin in any PROABONOS, the institute managing Factor E. Other Natural or Manmade portion of its range. guano extraction. The Reserva Nacional Factors Affecting Its Continued Incidental take by fishing operations 2 de Paracas protects an area of 1,293 mi Existence is the most significant threat to (3,350 km2) of the coastal marine Humboldt penguins. The Government of ecosystem. In 2006, 1,375 penguins Both large-scale commercial fisheries Peru lists incidental take by fisheries in were observed in this reserve (Lleellish extraction and artesanal fisheries fishing nets as one of the major sources et al. 2006, pp. 5–6). However, patrols compete for the primary food of the of penguin mortality (IMARPE 2007, p. of this area are inadequate to police Humboldt penguin throughout its range 2). Reports from Chile indicated a illegal activities such as dynamite (BirdLife International 2007, p. 4; Ellis similar level of impact on the species fishing (Lleellish et al. 2006, p. 4). et al. 1998, p. 100; Herling et al. 2005, (Majluf et al. 2002, pp. 1338–1343). In In Chile, there is a 30-year p. 23; Hennicke and Culik 2005, p. 178). Peru, the expansion of local-scale moratorium on hunting and capture of While El Nin˜ o events cause severe fisheries and the switching to new areas Humboldt penguins and at least four fluctuations in Humboldt penguin and species as local fisheries are unable major colonies are protected. Most numbers, over-fishing and entanglement to compete with larger commercial terrestrial sites where the species occurs (discussed below) are identified as a operations has brought humans and are within the national system of steady contributor to underlying long- penguins into increasing contact, with protected areas (UNEP WCMC 2003, p. term declines (BirdLife International increased penguin mortality due to 8). 2007, p. 4). The anchovy fishery in Peru entanglement in fishing nets (Paredes et The species is listed in Appendix I of collapsed in the 1970s due to high al. 2003, p. 135). Paredes et al. (2003, p. the Convention on International Trade catches and overcapacity of fishing 135) attribute the changes in in Endangered Species of Wild Fauna fleets, exacerbated by the effects of the distribution of penguin colonies and Flora (CITES) and in Appendix I of 1972–73 El Nin˜ o event. Twenty years southward in Peru to this increased the Convention on Migratory Species. passed before it became clear that this human disturbance—there are now Exportation of Humboldt penguins from fishery had recovered (Food and fewer penguins on the central coastal Peru or Chile is now prohibited (Ellis et Agriculture Organization (FAO) 2007, p. area and more to the south. al. 1998, p. 101), removing this as a 2). These recovered stocks continue to Between 1991 and 1998, Majluf et al. potential threat to the species. be significantly impacted by major El (2002, pp. 1338–1343) recorded 922 While legal protections are in place Nin˜ o events, but have rebounded more deaths in fishing nets out of a for the Humboldt penguin in both Chile quickly after recent events, with Peru population of approximately 4,000 and Peru, in general it is reported that reporting anchovy catches of 8.64 breeding Humboldt penguins at Punta enforcement of such laws are limited million T (9.6 million t) in 2000 and San Juan, Peru. This level of incidental due to limited resources and the remote 5.76 million T (6.4 million t) in 2001 take was found to be unsustainable even location of penguin colonies (UNEP (FAO 2007, p. 2), and Chile reporting without factoring in periodic El Nin˜ o WCMC 2003, p. 8). The UNEP WCMC catches of 1.25 million T (1.4 million t) impacts. Take was highly variable Report on the Status of Humboldt in 2004 (FAO 2006, p. 4). In Chile, local- between years, with the greatest Penguins concluded that little has been level commercial extraction of specific incidental mortality when surface set

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drift gill nets were being used to catch penguins (Equipo Ciudano 2007, p. 1). in the historic and recent past. Such cojinovas (Seriolella violace), a species A similar spill of 2,206 T (2,000 t) of events, which occur irregularly every 2– that declined during the course of the crude oil occurred at an oil terminal off 7 years, have increased in frequency and study. A subsequent study found that Lima in 1984, severely polluting intensity in recent years and are likely the risk of entanglement is highest when beaches there (ITOPF 2000b, p. 3). As to impact Humboldt penguins more surface nets are set at night (Taylor et al. noted in Factor D, Chile and Peru have frequently and more severely in the 2002, p. 706). limited ability to handle spill cleanup. foreseeable future. The harvest of In Chile, Simeone et al. (1999, pp. However, while there is a possibility Humboldt penguins for food, eggs, and 157–161) recorded 605 Humboldt of oil spill impacts as a result of bait is a threat to the survival of the penguins drowned in drift gill nets set incidents along the Peruvian or Chilean Humboldt penguin, and we have no for corvina (Cilus gilberti) in the coast, we find that a number of elements reason to believe this threat will be Valparaiso region of central Chile mitigate against our finding this a threat ameliorated in the future. Incidental between 1991 and 1996. Birds pursuing to the species. There is little history of take by fisheries operations has emerged anchovies and sardines were apparently spill events in the region and the as the most significant human-induced unable to see the transparent nets in breeding colonies of Humboldt penguin threat to Humboldt penguins in both their path and were entangled and are widely dispersed along a very long Chile and Peru, causing significant drowned. These mortalities occurred coastline. In addition, the Humboldt mortality of Humboldt penguins in both outside of the breeding season when penguin distribution does not countries in the 1990s. There currently penguins forage in large aggregations encompass the southern tip of South appears to be a lack of enforcement and and probably involved birds originating America where the risk of oil spill is a lack of significant measures to reduce from beyond small local colonies. The greatest. On this basis, we conclude that the impacts. Based on our analysis of deaths recorded represent oil spill impacts are not a threat to the the best available information, we have underestimates of rangewide survival of the Humboldt penguin in no reason to believe that population mortality—the authors only studied one any portion of its range. trends will change in the future, nor that of four major regions where corvina In summary, we find that fisheries the effects of current threats acting on fishing occurred. Incidental mortality bycatch is a threat to the survival of the the species will be ameliorated in the from such fishing operations is thought Humboldt penguin throughout all of its foreseeable future. to affect Humboldt penguins throughout range now and in the foreseeable future. Humboldt Penguin Finding the species’ range (Wallace et al. 1999, Foreseeable Future p. 442). Therefore we conclude that The Humboldt penguin has decreased fisheries bycatch is a threat to the The term ‘‘threatened species’’ means historically from more than a million Humboldt penguin. any species (or subspecies or, for birds in the 19th century to 41,000 to In addition, fishing with explosives, vertebrates, distinct population 47,000 individual birds today. Since such as dynamite, is listed by INRENA segments) that is likely to become an 1981, the Peruvian population has as one of three major threats to endangered species within the fluctuated between 3,500 and 7,000 Humboldt penguins in Peru (INRENA foreseeable future throughout all or a individuals, with the most recent 2007, p. 2). The use of explosives is significant portion of its range. The Act estimate at 5,000 individuals. Estimates recurrent in the Reserva Nacional de does not define the term ‘‘foreseeable of the population in Chile (30,000 to Paracas, the primary center of future.’’ For the purpose of this 35,000 individuals) have been recently population for penguins in Peru. proposed rule, we define the updated with improved documentation Explosives use is especially prevalent in ‘‘foreseeable future’’ to be the extent to of a colony at Isla Chanaral. The the southern zone, an area that contains which, given the amount and substance increase in the population estimate is a more than 73 percent of the population, of available data, we can anticipate correction of systematic undercounting but does not receive as thorough events or effects, or reliably extrapolate for 20 years, and cannot be concluded patrolling as the north (Lleellish et al. threat trends, such that we reasonably to signify recent population increases in 2006, p. 4). believe that reliable predictions can be Chile. Oil and chemical spills can have made concerning the future as it relates Historical threats to terrestrial habitat, direct effects on the Humboldt penguin. to the status of the species at issue. in particular the destruction of The range of the species encompasses In considering the foreseeable future Humboldt penguin nesting substrate by major industrial ports along the coast of as it relates to the status of the guano collection, have been responsible both Chile and Peru. Approximately Humboldt penguin, we considered the for the massive historical decline of the 100,000 barrels per day of crude oil threats acting on the species, as well as species, and this loss of nesting habitat transit the coastal waters from the tip of population trends. We considered the continues to impact the breeding South America to Panama (ITOPF 2003, historical data to identify any relevant success of the species. Effects of guano p. 1) with over 1,000 tankers calling existing trends that might allow for extraction on the current populations annually at ports in that entire region. reliable prediction of the future (in the appear to have been reduced by Major spill events in Chile have been form of extrapolating the trends). designation of protected areas and limited to the Straits of Magellan to the With respect to the Humboldt management of the limited guano south of the range of the Humboldt penguin, the available data indicate that harvesting that still occurs. However, at penguin, and no major events have been historical declines have resulted from guano islands the availability and recorded for Peru (ITOPF 2000a, p. 2; the destruction of Humboldt penguin quality of nesting habitat is still ITOPF 2000b, p. 2). However, lesser nesting substrate by guano collection, impacted by both historical and ongoing spills have occurred. On May 25, 2007, and this loss of nesting habitat harvest. about 92,400 gallons (350,000 liters) of continues to impact the breeding The impact of El Nin˜ o events, which crude oil leaked into San Vicente Bay in success of the species. We have no have caused periodic crashes of the food Talcuhuano, near Concepcion, Chile, reason to believe this will change in the sources of Humboldt penguins in Peru during offloading of fuel by the vessel future. El Nin˜ o events have caused and Chile in the historic and recent New Constellation, with impacts on sea periodic crashes of the food supply of past, is a threat factor leading to lions and seabirds, including Humboldt Humboldt penguins in Peru and Chile declines of this species. Such events,

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which occur irregularly every 2–7 years, in danger of extinction within the and Chile in conservation status, habitat have increased in frequency and foreseeable future throughout all of its management, and regulatory intensity in recent years and are likely range. mechanisms, we have found no to impact Humboldt penguins more and significant differences between the two Distinct Population Segment (DPS) more severely in the foreseeable future. countries. In both countries, take of Given reduced population sizes and the Section 3(16) of the Act defines penguins is prohibited, but some illegal existence of other significant threats, the ‘‘species’’ to include ‘‘any distinct take occurs, and measures to address resiliency of the Humboldt penguin to population segment of any species of fisheries bycatch are similar, but respond to these cyclical El Nin˜ o events vertebrate fish or wildlife which fisheries bycatch remains widespread. is greatly reduced. interbreeds when mature.’’ To interpret Both countries provide protection to We find that harvest of Humboldt and implement the DPS provisions of major breeding colonies of the species. penguins for food, eggs and bait is a the Act and Congressional guidance, the The Chilean population is more threat to the survival of the Humboldt Service and National Marine Fisheries numerous, but the extent of their range penguin throughout all of its range. Service published a Policy regarding the is greater. Given the fact that problems Tourism, if not properly managed, has recognition of Distinct Vertebrate in census data have only recently been the potential to impact individual Population Segments in the Federal corrected, we cannot conclude that colonies; however, we do not conclude Register (DPS Policy) on February 7, Chilean Humboldt penguin population this is a threat to the species. 1996 (61 FR 4722). Under the DPS trends are different from the Peruvian or Unlike the African penguin which policy, three factors are considered in a that conservation concerns are different. breeds directly on a major shipping decision concerning the establishment In fact, the impacts of habitat loss, the route for petroleum and at major ports and classification of a possible DPS. effects of El Nin˜ o, intentional take, of call for tanker traffic, the range of the These are applied similarly to the list of inadequacy of regulatory mechanisms, Humboldt penguin along the coast of endangered and threatened species. The and fisheries bycatch are concerns Chile and Peru does not have the same first two factors—discreteness of the throughout the range. history of major spills or the same level population segment in relation to the Based on our analysis, we do not find of shipping traffic. Therefore we remainder of the taxon and the that differences in conservation status or conclude that oil spill impacts are not significance of the population segment management for Humboldt penguins a threat to the survival of the Humboldt to the taxon to which it belongs—bear across the range countries are sufficient penguin in any portion of its range. on whether the population segment is a to justify the use of international Industrial fisheries extraction, which valid DPS. If a population meets both boundaries to satisfy the discreteness in conjunction with El Nin˜ o caused tests, it is a DPS and then the third criterion of the DPS Policy. Therefore, collapse of anchovy stocks in the 1970s, factor is applied—the population we have concluded that there are no has had a historical influence on the segment’s conservation status in relation population segments that satisfy the species and contributed to its long-term to the standards for listing, delisting, or discreteness criterion of the DPS Policy. decline. The recovery of fish stocks reclassification under the Act. As a consequence, we could not identify since the 1970s, however, has improved Discreteness Analysis any geographic areas or populations that the food base of this species. Although would qualify as a DPS under our 1996 large-scale commercial fisheries and Under the DPS policy, a population DPS Policy (61 FR 4722). local-scale fisheries extraction is segment of a vertebrate taxon may be targeting the same prey as the Humboldt considered discrete if it satisfies either Significant Portion of the Range penguin, we do not identify this as a of the following conditions: (1) It is Analysis current threat to the species. More markedly separated from other Having determined that the Humboldt importantly, incidental take by fisheries populations of the same taxon as a penguin is likely to become in danger of operations has emerged as the most consequence of physical, physiological, extinction within the foreseeable future significant human-induced threat to ecological, or behavioral factors, or (2) it throughout all of its range, we also Humboldt penguins in both Chile and is delimited by international boundaries considered whether there are any Peru. Entanglement in gill nets caused within which differences in control of significant portions of its range where significant documented mortality of exploitation, management of habitat, the species is currently in danger of Humboldt penguins in both countries in conservation status, or regulatory extinction. See our analysis for the the 1990s. There is evidence of lack of mechanisms exist that are significant in yellow-eyed penguin for how we make enforcement and lack of significant light of section 4(a)(1)(D) of the Act. this determination. measures to reduce the impacts of Humboldt penguins have a Given the continuous linear range of bycatch. Therefore, we find that continuous range from northern Peru to the Humboldt penguin which breeds fisheries bycatch is a threat to the mid-southern Chile. With respect to from northern Peru to south-central Humboldt penguin throughout all of its discreteness criterion 1, we have not Chile and the distribution of colonies range. identified any marked biological along that coast, no specific geographic On the basis of: (1) Destruction of its boundaries between populations within portions of concern were immediately habitat by guano extraction; (2) high that range or of differences in physical, apparent. Therefore, we considered the likelihood of El Nin˜ o events physiological, ecological, or behavioral occurrence of threat factors and to what catastrophically impacting the prey of factors among any groups within that extent their occurrence was uneven Humboldt penguins in cyclical 2-to 7- range. We have found no reports of throughout the range or concentrated in year timeframes; (3) intentional harvest genetic or morphological discontinuity any particular portion of the range, or of this species for meat, eggs, and bait; between any discrete elements of the whether there were any portions of the (4) inadequacy of regulatory population. The range of the Humboldt range where the threats were different. mechanisms, especially with respect to penguin crosses the international Overall, for each factor identified as a controlling fisheries bycatch; and (5) boundary between Peru and Chile, threat, we found that these were threats ongoing threat of incidental take from which leads to evaluation of the second throughout the range. Terrestrial and fisheries bycatch, we find that the discreteness factor. However, in our marine habitat loss, which included the Humboldt penguin is likely to become analysis of differences between Peru impacts of guano extraction, the effects

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of El Nin˜ o, intentional harvest, the have two main islands and some minor erect-crested penguin’s current range, inadequacy of regulatory mechanisms, islands. The largest is Antipodes Island, and have not included them in our and fisheries bycatch were determined consisting of 23 mi2 (60 km2), and the analysis of the status of this species. to be threats throughout Humboldt second island, Bollons, consists of 0.77 On the basis of declines of at least 50 penguin’s range. mi2 (2 km2). Erect-crested penguins nest percent in the past 45 years and a In reviewing our findings, one in large, dense, conspicuous colonies, breeding range constricted to two difference within threat Factor A relates numbering thousands of pairs, on rocky locations, the IUCN has listed the to the ongoing limited harvest of guano terrain (BirdLife International 2007, p. species as ‘Endangered’ on the IUCN in Peru, while such harvest has stopped 3). Winter distribution at sea is largely Red List (BirdLife International 2007, p. in Chile. In our finding, we indicated unknown. 1). It is ranked as Category B (second that both the historic and present The Action Plan for Seabird priority) on the Molloy and Davis threat impacts of guano extraction were a Conservation of New Zealand lists the categories used by the New Zealand threat to the Humboldt penguin. On the total world breeding population of erect- DOC (Taylor 2000, p. 33) and, on that basis of this difference, we considered crested penguin at 81,000 pairs basis, placed in the second category of whether the Peruvian population of +/¥4,000 pairs (Taylor 2000, p. 65). highest priority in the New Zealand Humboldt penguin may be in danger of Counts of erect-crested penguins at Action Plan for Seabird Conservation extinction in a significant portion of its Bounty Islands in 1978 estimated (Taylor 2000, p. 33). The species is range. The information available on 115,000 breeding pairs (Robertson and listed as ‘acutely threatened—nationally local harvest patterns or population van Tets 1982, p. 315) although these endangered’ on the New Zealand Threat trends in specific areas where guano counts are considered overestimations Classification System list (Hitchmough harvest is documented do not allow us (Houston 2007, p. 3). While the data et al. 2007, p. 38; Molloy et al. 2002, pp. to divide the range further. The most were not directly comparable, 1997 13–23). Under this classification system, recent 2006 estimate of the Peruvian counts found 27,956 pairs (Taylor 2000, which is non-regulatory, species experts population of the Humboldt penguin is p. 65), suggesting that a large decline in assess the placement of species into approximately 5,000 individuals. This numbers may have occurred at the threat categories according to both count includes an increase of 41 percent Bounty Islands (BirdLife International status criteria and threat criteria. since 2004 in the southern portion of 2007, p. 2). There have been no further Summary of Factors Affecting the Erect- the range where 80 percent of the birds surveys since 1997–98. Crested Penguin are found. The overall population has In 1978, the population on the fluctuated between 2,100 and 7,000 Antipodes was thought to be similar in Factor A. The Present or Threatened size to Bounty Islands (about 115,000 individuals since 1981with fluctuations Destruction, Modification, or breeding pairs). More recent surveys in attributed to response to El Nin˜ o events. Curtailment of Erect-Crested Penguin 1995 indicate a population of 49,000 to While the population of Humboldt Habitat or Range 57,000 pairs in the Antipodes. penguins in Peru has fluctuated at low Comparisons of photographs of nesting There is little evidence of destruction, numbers for many years, current areas from the Antipodes show a modification, or curtailment of erect- evidence of increases over the last few constriction of colonies at some sites crested penguin breeding habitat on years reflects continued reproduction from 1978–1995. There have been no land at the Bounty and Antipodes and resiliency of this population. subsequent formal counts of erect- Islands. Feral animals, such as sheep Therefore, we find that the Humboldt crested penguins at either the Bounty and cattle, which could trample nesting penguin is not currently in danger of Islands or the Antipodes, and visits to habitat, are absent. Competition for extinction in the Peruvian portion of the the islands are rare. Both observations breeding habitat with fur seals is range. and photographs taken by researchers reported to be minimal (Houston 2007, As a result, while the best available visiting these islands for other purposes p. 1). scientific and commercial data allows have provided anecdotal information The New Zealand sub-Antarctic us to make a determination as to the that erect-crested penguin colony sizes islands have been inscribed on the rangewide status of the Humboldt continue to decrease (Davis, 2001, p. 8; World Heritage List (World Heritage List penguin, we have determined that there D. Houston 2008, pers. comm.). 2008, p. 16). All islands are protected as are no significant portions of the range A few hundred birds formerly bred at National Nature Reserves and are State- in which the species is currently in Campbell Island farther to the southwest owned (World Heritage Committee immediate danger of extinction. in the 1940s; in 1986–87, a small Report 1998, p. 21). We find that the Therefore, we propose to list the number of birds (20 to 30 pairs) were present or threatened destruction, Humboldt penguin as a threatened observed there, but no breeding was modification, or curtailment of the species throughout its range under the seen (Taylor 2000, p. 65). Breeding on terrestrial habitat or range of the erect- Act. the Auckland islands, also to the crested penguin is not a threat of the Erect-Crested Penguin (Eudyptes southwest, was considered a possibility, species in any portion of its range. sclateri) with one pair found breeding there in Given the lack of terrestrial predators 1976 (Taylor 2000, p. 65). The most at the majority of erect-crested penguin Background recent penguin conservation assessment colony sites, the absence of direct The erect-crested penguin, a New (Ellis et al. 2007, p. 6) reported erect- competition with other species, and the Zealand endemic, breeds primarily on crested penguins are no longer present lack of physical habitat destruction at the Bounty Islands and Antipodes at Campbell or Auckland Islands. There these sites, recent declines in erect- Islands, located respectively, is one record of breeding on the crested populations have been approximately 437 mi (700 km) and 543 mainland of the South Island of New attributed to changes in the marine mi (870 km) southeast of the South Zealand at Otago Peninsula, but it is habitat. Penguins are susceptible to Island of New Zealand (NZ DODC 2006, unlikely there was ever widespread local ecosystem perturbations because pp. 27, 30). The Bounty Islands consist breeding there (Houston 2007, p. 3). they are constrained by how far they can of eight islands with a total area of 0.5 Based on this information, we do not swim from the colony in search of food mi2 (1.3 km2). The Antipodes Islands consider these areas as being part of the (Davis 2001, p. 9). It has been

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hypothesized that slight warming of sea educational purposes is not a threat to prevent the introduction or re- temperatures and change in distribution this species in any portion of its range. introduction of animal and plant pest of prey species may be having an impact species (West 2005, p. 36). At this time, Factor C. Disease or Predation on erect-crested penguin colonies we have no means to measure the (Taylor 2000, p. 66; Ellis et al. 2007, p. Avian disease has not been recorded effectiveness of these quarantine 6). The primary basis for this inference in erect-crested penguins, although measures. comes from studies of a closely-related disease vectors of ticks and bird fleas In addition to national protection, all species, the southern rockhopper are found in colonies (Taylor 2000, p. of New Zealand sub-Antarctic islands penguin at Campbell Island 66). are inscribed on the World Heritage List (Cunningham and Moors 1994, p. 27), The only known mammalian (World Heritage List 2008, p. 16). World where the population declined by 94 predators within the current range of the Heritage designation places an percent between the early 1940s and erect-crested penguin are mice, which obligation on New Zealand to ‘‘take 1985 from an estimated 800,000 are present only on the main Antipodes appropriate legal, scientific, technical, breeding pairs to 51,500 (Cunningham Island. Although their eradication from administrative and financial measures, and Moors 1994, p. 34). The majority of this island is recommended as a future necessary for the identification, this decline appears to have coincided management action in the Action Plan protection, conservation, presentation with a period of warmed sea surface for Seabird Conservation in New and rehabilitation of this heritage’’ temperatures between 1946 and 1956. It Zealand, we have found no reference to (World Heritage Convention 1972, p. 3). is widely inferred that warmer waters these mice being a threat to the erect- At the time of inscription of this site most likely affected southern crested penguins on this one island in onto the World Heritage List in 1998, rockhopper penguins through changes their range (Taylor 2000, p. 67). At the human impacts were described as in the abundance, availability, and other islands in the Antipodes group ‘‘limited to the effects of introduced distribution of their food supply (Bollons, Archway, and species at Auckland and Campbell (Cunningham and Moors 1994, p. 34); Disappointment) and at the Bounty Islands’’ (World Heritage Convention recent research suggested they may have Islands, mammalian predators are not Nomination Documentation 1998, p. 1). had to work harder to find the same present. Feral cats, sheep, and cattle are New Zealand has in place The New food (Thompson and Sagar 2002, p. 11). also no longer present (Taylor 2000, p. Zealand Marine Oil Spill Response 66). The threat of future introduction of Strategy, which provides the overall The suggestion that erect-crested invasive species is being managed by framework to mount a response to penguins may have been similarly the New Zealand DOC, which has marine oil spills that occur within New impacted by changes in the marine measures in place for quarantine of Zealand’s area of responsibility. The habitat during this time period is researchers working on sub-Antarctic aim of the strategy is to minimize the strengthened by the fact that erect- islands (West 2005, p. 36). These effects of oil on the environment and crested penguin breeding colonies are quarantine measures are an important people’s safety and health. The National now absent from Campbell Island (Ellis step toward controlling the introduction Oil Spill Contingency Plan promotes a et al. 2007, p. 6); they disappeared from of invasive species. At this time, planned and nationally coordinated the island during the same time period however, we have no means to measure response to any marine oil spill that is (1940s to 1987) as the southern their effectiveness. beyond the capability of a local regional rockhopper decline. In the 1940s, a few On the basis of this information, we council or outside the region of any hundred erect-crested penguins bred on find that neither disease nor predation local council (Maritime New Zealand the island (Taylor 2000, p. 65). The is a threat to the erect-crested penguin 2007, p. 1). As discussed below under latest IUCN assessment of the erect- in any portion of its range. Factor E, rapid containment of spills in crested penguin found that oceanic remote areas and effective triage Factor D. Inadequacy of Existing warming is a continuing threat that is response under this plan have shown Regulatory Mechanisms resulting in a ‘‘very rapid decline’’ in these to be effective regulatory greater than 90 percent of the All breeding islands of the erect- mechanisms (New Zealand Wildlife population, and is therefore a threat of crested penguin are protected by New Health Center 2007, p. 2; Taylor 2000, high impact to the erect-crested penguin Zealand as National Nature Reserves. p. 94). (BirdLife International 2007, p. 2 of The marine areas are managed under On the basis of national and ‘additional data’). Therefore, based on fisheries legislation (World Heritage international protections in place, we the best available information, we find Committee Report 1998, p. 21). find that inadequacy of existing that the present or threatened The Action Plan for Seabird regulatory mechanisms is not a threat to destruction, modification, or Conservation in New Zealand is in place the erect-crested penguin in any portion curtailment of the erect-crested and outlines previous conservation of its range. penguin’s marine habitat is a threat to actions, future management actions the species throughout all its range now needed, future survey and monitoring Factor E. Other Natural or Manmade and in the foreseeable future. needs, and research priorities. Among Factors Affecting the Continued the most relevant recommendations are Existence of the Species Factor B. Overutilization for pest quarantine measures to keep new New Zealand’s Action Plan for Commercial, Recreational, Scientific, or animal and plant pest species from Conservation of Seabirds notes that, Educational Purposes reaching offshore islands and while there is a possibility that erect- Aside from periodic surveys and the eradication of mice from the main crested penguins could be caught in possibility of a future research program Antipodes Island (Taylor 2000, p. 67). trawl nets or by other fishing activity, focused on the diet and foraging of the At least one of these recommendations there are no records of such (Taylor species, we are unaware of any purpose has been put into place; as mentioned 2000, p. 66). The IUCN noted that the for which the erect-crested penguin is under Factor C, strict required New Zealand DOC has limited legal currently being utilized. Therefore, we quarantine measures are now in place powers to control commercial conclude that overutilization for for researchers and expeditions to all harvesting in waters around the sub- commercial, recreational, scientific, or New Zealand sub-Antarctic islands to Antarctic islands and recommended

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that the New Zealand Ministry of chemical spills to the erect-crested final Service action related to this Fisheries should be encouraged to penguin is mitigated by New Zealand’s species will be as accurate as possible. address fisheries bycatch and squid oil spill response and contingency As characterized in our analysis of fishery impacts (World Heritage plans, which have been shown to be threat factors above, the erect-crested Nomination—IUCN Technical effective in previous events even at penguin is at risk throughout its range Evaluation 1998, p. 25). As noted in the remote locations, and by the remoteness by ongoing changes to its marine discussion under Factor A, the Action of Antipodes and Bounty Islands from habitat. At this time, managers can Plan for Conservation of New Zealand major shipping routes or shipping monitor impacts of this threat but have Seabirds outlines research efforts that activity. While the 138 mi (221 km) no management tools to reduce the would provide more data on the diet distance between the two primary threat. Therefore, it is reasonably likely and activities and distribution of erect- breeding areas reduces the likelihood of that this threat will continue in the crested penguins at sea. Such research impacts affecting the entire population, future. Based on our analysis of the best will assist in evaluating whether the limited number of breeding areas is available information, we have no competition for prey with fisheries or a concern relative to the potential of oil reason to believe that population trends bycatch from fisheries activities is a spills or other catastrophic events. On will change in the future, nor that the factor in declines of the erect-crested the basis of the best available effects of current threats acting on the penguin. However, in the absence of information we find that oil and species will be ameliorated in the such research results, we have found no chemical spills are not a threat to the foreseeable future. evidence that erect-crested penguins are erect-crested penguin in any portion of Erect-Crested Penguin Finding subject to fisheries bycatch. its range. Significant declines in numbers have A large proportion of erect-crested On the basis of our analysis, we find been documented for the erect-crested penguin populations are found on two that other natural or manmade factors isolated, but widely separated, island penguin between 1978 and 1997 at their are not a threat to the erect-crested two primary breeding grounds on the archipelagos during the breeding penguin in any portion of its range. season. We have examined the Bounty and Antipodes Islands. The possibility that oil and chemical spills Foreseeable Future latest population estimates from the late 1990s indicated there were may impact erect-crested penguins. The term ‘‘threatened species’’ means Such spills, should they occur and not approximately 81,000 pairs of erect- any species (or subspecies or, for crested penguins in these two primary be effectively managed, can have direct vertebrates, distinct population effects on marine seabirds. As a breeding grounds. The declines are segments) that is likely to become an reported to be largest at Bounty Island, gregarious colonial nesting species, endangered species within the erect-crested penguins are potentially although the extent of the decline is foreseeable future throughout all or a uncertain due to the differing susceptible to mortality from local oil significant portion of its range. The Act spill events during the breeding season. methodologies between the surveys does not define the term ‘‘foreseeable A significant spill at either the conducted there in 1978 and those future.’’ For the purpose of this Antipodes or Bounty Islands could conducted in 1997–98. At the Antipodes proposed rule, we define the jeopardize more than one-third of the Islands, declines of from 50 to 58 ‘‘foreseeable future’’ to be the extent to population of this species. The non- percent have been estimated between which, given the amount and substance breeding season distribution of erect- 1978 and 1995, with photographic of available data, we can anticipate crested penguins is not well- evidence from those two years showing events or effects, or reliably extrapolate documented, but there is the potential obvious contraction in colony areas at threat trends, such that we reasonably for birds to encounter spills within the some sites (Taylor 2000, p.65). Formal believe that reliable predictions can be immediate region of colonies or, if they surveys have not been conducted since disperse more widely, elsewhere in the made concerning the future as it relates the 1995 and 1997–98 surveys marine environment. to the status of the species at issue. referenced above, for the Antipodes and Based on previous incidents of oil and In considering the foreseeable future Bounty Islands, respectively. The only chemical spills around New Zealand, as it relates to the status of the erect- further information for this primary we evaluated this as a potential threat crested penguin, we considered the portion of the range is qualitative to this species. For example, in March threats acting on the species, as well as photographic evidence and observations 2000, the fishing vessel Seafresh 1 sank population trends. We considered the suggesting that declines continue. in Hanson Bay on the east coast of historical data to identify any relevant We have no recent population Chatham Island and released 66 T (60 t) existing trends that might allow for assessments for the erect-crested of diesel fuel. Rapid containment of the reliable prediction of the future (in the penguin. The most recent detailed oil at this very remote location form of extrapolating the trends). information, from a decade ago, prevented any wildlife casualties (New With respect to the erect-crested indicated populations were in decline Zealand Wildlife Health Center 2007, p. penguin, the most recent detailed with more recent qualitative 2). The same source reported that in information, from a decade ago, information suggesting declines 1998 the fishing vessel Don Wong 529 indicated populations were in decline, continue. Despite the relatively high ran aground at Breaksea Islets, off with more recent qualitative population numbers of this species Stewart Island, outside the range of the information suggesting that declines estimated in 1998, the population erect-crested penguin. Approximately continue. Although this qualitative data numbers at the time showed a very high 331 T (300 t) of marine diesel was is currently the best information rate of decline. This species’ breeding spilled along with smaller amounts of available, its use in establishing a colonies have been reduced to only two lubricating and waste oils. With reliable population trend is limited. breeding island groups, separated from favorable weather conditions and Therefore, we are specifically requesting one another by 138 mi (221 km). Lower establishment of triage response, no the public to provide any updated population numbers reasonably likely to casualties of the pollution event were information available on current occur in the foreseeable future, discovered (Taylor 2000, p. 94). population numbers or trends for this combined with the limited number of However, the potential threat of oil or species. This will help ensure that any breeding areas, would make this species

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even more vulnerable to the threats from Available Conservation Measures exceptions apply to agents of the changes in the marine habitat, and Service and State conservation agencies. would make the species vulnerable to Conservation measures provided to species listed as endangered or We may issue permits to carry out potential impacts from oil spills and otherwise prohibited activities random catastrophic events. Therefore, threatened under the Act include involving endangered and threatened on the basis of our analysis of the best recognition, requirements for Federal wildlife species under certain available scientific and commercial protection, and prohibitions against information, we conclude that the erect- certain practices. Recognition through circumstances. Regulations governing crested penguin is likely to become listing results in public awareness, and permits are codified at 50 CFR 17.22 for endangered with extinction throughout encourages and results in conservation endangered species, and at 17.32 for all of its range in the foreseeable future. actions by Federal governments, private threatened species. With regard to agencies and groups, and individuals. endangered wildlife, a permit must be Significant Portion of the Range Section 7(a) of the Act, as amended, issued for the following purposes: For Analysis and as implemented by regulations at 50 scientific purposes, to enhance the Having determined that the erect- CFR part 402, requires Federal agencies propagation or survival of the species, crested penguin is likely to become to evaluate their actions within the and for incidental take in connection endangered with extinction in the United States or on the high seas with with otherwise lawful activities. foreseeable future throughout all of its respect to any species that is proposed range, we must next consider whether or listed as endangered or threatened, Peer Review there are any significant portions of its and with respect to its critical habitat, In accordance with our joint policy range which warrant further if any is being designated. However, with National Marine Fisheries Service, consideration as to whether the species given that the yellow-eyed penguin, ‘‘Notice of Interagency Cooperative is endangered. See our analysis for the white-flippered penguin, Fiordland Policy for Peer Review in Endangered yellow-eyed penguin for how we make crested penguin, Humboldt penguin, Species Act Activities,’’ published in this determination. and erect-crested penguin are not native Erect-crested penguins breed on two to the United States, critical habitat is the Federal Register on July 1, 1994 (59 primary island groups, Bounty and not being designated for these species FR 34270), we will seek the expert Antipodes Islands, which lie about 138 under section 4 of the Act. opinions of at least three appropriate mi (221 km) from one another in the independent specialists regarding this Section 8(a) of the Act authorizes South Pacific Ocean to the southwest of proposed rule. The purpose of peer limited financial assistance for the the South Island of New Zealand. The development and management of review is to ensure that our proposed erect-crested penguin is documented as rule is based on scientifically sound in decline at these two islands. Our programs that the Secretary of the Interior determines to be necessary or data, assumptions, and analyses. We rangewide threats analysis found that will send copies of this proposed rule to changes in the marine habitat—slight useful for the conservation of endangered and threatened species in the peer reviewers immediately warming of sea surface temperatures following publication in the Federal and their possible impact on prey foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to Register. We will invite these peer availability—have the same impact on reviewers to comment during the public the two areas. No information is encourage conservation programs for comment period, on our specific available that suggests this threat is foreign endangered species and to assumptions and conclusions regarding disproportionate between these two provide assistance for such programs in areas. The overall population number of the form of personnel and the training this proposed rule. the erect-crested penguins is not low— of personnel. We will consider all comments and 27,956 pairs at Bounty Island and The Act and its implementing information we receive during the 49,000 to 57,000 pairs at the Antipodes regulations set forth a series of general comment period on this proposed rule Islands. Although the population prohibitions and exceptions that apply during our preparation of a final numbers have declined at a very high to all endangered and threatened determination. Accordingly, our final rate and appear to be continuing to wildlife. As such, these prohibitions decision may differ from this proposal. decline, the most recent population would be applicable to yellow-eyed estimates indicate that the populations penguin, white-flippered penguin, Public Hearings Fiordland crested penguin, Humboldt of both island groups are not currently The Act provides for one or more penguin, and erect-crested penguin. in danger of extinction. public hearings on this proposal, if we As a result, while the best scientific These prohibitions, under 50 CFR 17.21, receive any requests for hearings. We and commercial data allows us to make make it illegal for any person subject to must receive your request for a public a determination as to the rangewide the jurisdiction of the United States to hearing within 45 days after the date of status of the erect-crested penguin, we ‘‘take’’ (take includes harass, harm, have determined that there are no pursue, hunt, shoot, wound, kill, trap, this Federal Register publication (see significant portions of the range in capture, collect, or to attempt any of DATES). Such requests must be made in which the species is currently in danger these) within the United States or upon writing and be addressed to the Chief of of extinction. Because we find that the the high seas, import or export, deliver, the Division of Scientific Authority at erect-crested penguin is not currently in receive, carry, transport, or ship in the address shown in the FOR FURTHER danger of extinction in these two interstate or foreign commerce in the INFORMATION CONTACT section. We will portions of its range, we need not course of a commercial activity, or to schedule public hearings on this address the question of significance for sell or offer for sale in interstate or proposal, if any are requested, and these populations. foreign commerce, any endangered announce the dates, times, and places of Therefore, we propose to list the wildlife species. It also is illegal to those hearings, as well as how to obtain erect-crested penguin as a threatened possess, sell, deliver, carry, transport, or reasonable accommodations, in the species throughout all of its range under ship any such wildlife that has been Federal Register at least 15 days before the Act. taken in violation of the Act. Certain the first hearing.

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Required Determinations (c) Use clear language rather than List of Subjects in 50 CFR Part 17 jargon; Regulatory Planning and Review Endangered and threatened species, (Executive Order 12866) (d) Be divided into short sections and sentences; and Exports, Imports, Reporting and recordkeeping requirements, The Office of Management and Budget (e) Use lists and tables wherever Transportation. has determined that this rule is not possible. significant under Executive Order If you feel that we have not met these Proposed Regulation Promulgation 12866. requirements, send us comments by one Accordingly, we propose to amend National Environmental Policy Act of the methods listed in the ADDRESSES part 17, subchapter B of chapter I, title (NEPA) section. To better help us revise the rule, your comments should be as 50 of the Code of Federal Regulations, We have determined that as set forth below: environmental assessments and specific as possible. For example, you environmental impact statements, as should tell us the numbers of the PART 17—[AMENDED] defined under the authority of the sections or paragraphs that are unclearly National Environmental Policy Act of written, which sections or sentences are 1. The authority citation for part 17 1969 (42 U.S.C. 4321 et seq.), need not too long, the sections where you feel continues to read as follows: lists or tables would be useful, etc. be prepared in connection with Authority: 16 U.S.C. 1361–1407; 16 U.S.C. regulations adopted under section 4(a) References Cited 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– of the Act. We published a notice 625, 100 Stat. 3500; unless otherwise noted. outlining our reasons for this A complete list of all references cited determination in the Federal Register in this proposed rule is available on the 2. Amend § 17.11(h) by adding new on October 25, 1983 (48 FR 49244). Internet at http://www.regulations.gov entries for ‘‘Penguin, Erect-crested,’’ or upon request from the Division of ‘‘Penguin, Fiordland crested,’’ Clarity of the Rule Scientific Authority, U.S. Fish and ‘‘Penguin, Humboldt,’’ ‘‘Penguin, White- We are required by Executive Orders Wildlife Service (see FOR FURTHER flippered,’’ and ‘‘Penguin, Yellow-eyed’’ 12866 and 12988, and by the INFORMATION CONTACT). in alphabetical order under BIRDS to the List of Endangered and Threatened Presidential Memorandum of June 1, Author 1998, to write all rules in plain Wildlife as follows: language. This means that each rule we The authors of this proposed rule are staff of the Division of Scientific § 17.11 Endangered and threatened publish must: wildlife. (a) Be logically organized; Authority, U.S. Fish and Wildlife (b) Use the active voice to address Service (see FOR FURTHER INFORMATION * * * * * readers directly; CONTACT). (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* BIRDS

******* Penguin, erect- Eudyptes sclateri ... New Zealand, Boun- Entire ...... T ...... NA NA crested. ty Islands and An- tipodes Islands. Penguin, Fiordland Eudyptes New Zealand, South Entire ...... T ...... NA NA crested. pachyrhynchus. Island and off- shore islands.

******* Penguin, Humboldt .. Spheniscus Eastern Pacific Entire ...... T ...... NA NA humboldti. Ocean—Chile, Peru. Penguin, white- Eudyptula minor New Zealand, South Entire ...... T ...... NA NA flippered. albosignata. Island. Penguin, yellow-eyed Megadyptes antip- New Zealand, South Entire ...... T ...... NA NA odes. Island and off- shore islands.

*******

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* * * * * FOR FURTHER INFORMATION CONTACT: Background Pamela Hall, Branch Chief, Division of Dated: December 2, 2008. Section 4(b)(3)(A) of the Act (16 H. Dale Hall, Scientific Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, U.S.C. 1533 (b)(3)(A)) requires the Director, U.S. Fish and Wildlife Service. Room 110, Arlington, VA 22203; Service to make a finding known as a [FR Doc. E8–29670 Filed 12–17–08; 8:45 am] telephone 703–358–1708; facsimile ‘‘90-day finding,’’ on whether a petition BILLING CODE 4310–55–P 703–358–2276. If you use a to add, remove, or reclassify a species telecommunications device for the deaf from the list of endangered or (TDD), call the Federal Information threatened species has presented DEPARTMENT OF THE INTERIOR Relay Service (FIRS) at 800–877–8339. substantial information indicating that the requested action may be warranted. Fish and Wildlife Service SUPPLEMENTARY INFORMATION: To the maximum extent practicable, the Public Comments finding shall be made within 90 days 50 CFR Part 17 following receipt of the petition and We intend that any final action [FWS–R9–IA–2008–0068; 96000–1671– published promptly in the Federal resulting from this proposal will be as 0000–B6] Register. If the Service finds that the accurate and as effective as possible. petition has presented substantial RIN 1018–AV60 Therefore, we request comments or information indicating that the suggestions on this proposed rule. We Endangered and Threatened Wildlife requested action may be warranted particularly seek comments concerning: and Plants; 12-Month Finding on a (referred to as a positive finding), Petition To List the African Penguin (1) Biological, commercial, trade, or section 4(b)(3)(A) of the Act requires the (Spheniscus demersus) Under the other relevant data concerning any Service to commence a status review of Endangered Species Act, and threats (or lack thereof) to this species the species if one has not already been Proposed Rule To List the African and regulations that may be addressing initiated under the Service’s internal Penguin as Endangered Throughout those threats. candidate assessment process. In Its Range (2) Additional information concerning addition, section 4(b)(3)(B) of the Act the range, distribution, and population requires the Service to make a finding AGENCY: Fish and Wildlife Service, size of this species, including the within 12 months following receipt of Interior. locations of any additional populations the petition on whether the requested ACTION: Proposed rule and notice of 12- of this species. action is warranted, not warranted, or month petition finding. (3) Any information on the biological warranted but precluded by higher- or ecological requirements of the SUMMARY: We, the U.S. Fish and priority listing actions (this finding is species. Wildlife Service (Service), propose to referred to as the ‘‘12-month finding’’). list the African penguin (Spheniscus (4) Current or planned activities in the Section 4(b)(3)(C) of the Act requires demersus) as an endangered species areas occupied by the species and that a finding of warranted but under the Endangered Species Act of possible impacts of these activities on precluded for petitioned species should 1973, as amended (Act). This proposal, this species. be treated as having been resubmitted if made final, would extend the Act’s You may submit your comments and on the date of the warranted but protection to this species. This proposal materials concerning this proposed rule precluded finding, and is, therefore, also constitutes our 12-month finding by one of the methods listed in the subject to a new finding within 1 year on the petition to list this species. The ADDRESSES section. We will not and subsequently thereafter until we Service seeks data and comments from consider comments sent by e-mail or fax take action on a proposal to list or the public on this proposed rule. or to an address not listed in the withdraw our original finding. The Service publishes an annual notice of DATES: We will accept comments and ADDRESSES section. information received or postmarked on If you submit a comment via http:// resubmitted petition findings (annual or before February 17, 2009. We must www.regulations.gov, your entire notice) for all foreign species for which receive requests for public hearings, in comment—including any personal listings were previously found to be warranted but precluded. writing, at the address shown in the FOR identifying information—will be posted FURTHER INFORMATION CONTACT section on the Web site. If you submit a In this notice, we announce a by February 2, 2009. hardcopy comment that includes warranted 12-month finding and ADDRESSES: You may submit comments personal identifying information, you proposed rule to list one penguin taxon, by one of the following methods: may request at the top of your document the African penguin, as an endangered • Federal eRulemaking Portal: http:// that we withhold this information from species under the Act. We will www.regulations.gov. Follow the public review. However, we cannot announce the 12-month findings for the instructions for submitting comments. guarantee that we will be able to do so. emperor penguin (Aptenodytes forsteri), • U.S. mail or hand-delivery: Public We will post all hardcopy comments on southern rockhopper penguin (Eudyptes Comments Processing, Attn: [FWS–R9– http://www.regulations.gov. chrysocome), northern rockhopper IA–2008–0068]; Division of Policy and Comments and materials we receive, penguin (Eudyptes chrysolophus), Directives Management; U.S. Fish and as well as supporting documentation we Fiordland crested penguin (Eudyptes Wildlife Service; 4401 N. Fairfax Drive, used in preparing this proposed rule, pachyrhynchus), erect-crested penguin Suite 222; Arlington, VA 22203. will be available for public inspection (Eudyptes sclateri), macaroni penguin We will not accept comments by on http://www.regulations.gov, or by (Eudyptes chrysolophus), white- e-mail or fax. We will post all comments appointment, during normal business flippered penguin (Eudyptula minor on http://www.regulations.gov. This hours, at the U.S. Fish and Wildlife albosignata), yellow-eyed penguin generally means that we will post any Service, Division of Scientific (Megadyptes antipodes), and Humboldt personal information you provide us Authority, 4401 N. Fairfax Drive, Room penguin (Spheniscus humboldti) in one (see the Public Comments section below 110, Arlington, VA 22203; telephone or more subsequent Federal Register for more information). 703–358–1708. notice(s).

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